01982875
03-05-1999
Timothy Fernandez, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Timothy Fernandez v. Department of the Navy
01982875
March 5, 1999
Timothy Fernandez, )
Appellant, )
)
v. ) Appeal No. 01982875
) Agency No. 9700027S10
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C and �501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was dated January 25, 1998. The appeal was postmarked March 6,
1998.<1> Accordingly, the appeal is as accepted timely (see, 29
C.F.R. �1614.402(a)), in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed one
allegation from appellant's complaint on the grounds that appellant
raised the same matter in a prior complaint pending before the agency.
BACKGROUND
The record indicates that on July 10, 1997, and September 24,
1997, appellant initiated contact with EEO Counselors regarding two
complaints. Informal efforts to resolve his concerns were unsuccessful.
On August 19, 1997 and October 21, 1997, appellant filed formal
complaints, alleging that he was the victim of unlawful employment
discrimination on the bases of national origin (Hispanic), sex (male),
physical disability (hip replacement - permanent and stationary), and
in reprisal for prior EEO complaints when:
1) a proper job search to find reasonable accommodation, was not
conducted by the Human Resources Office, MCLB, Barstow; and
2) he was not accommodated with a permanent position by the Human
Resources Office, MCLB, Barstow.
On January 25, 1998, the agency combined the complaints, accepted
allegation (1) for further processing, and issued a final decision
dismissing allegation (2) as stating the same claim as an allegation in
agency #DON(MC) 96-00027-S03, pending before the agency. We note that the
record does not include documentation from agency #DON(MC) 96-00027-S03.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
As indicated above, the record does not contain any documentation from
agency #DON(MC) 96-00027-S03 in order to determine the propriety of the
agency's dismissal; however, we find upon review, that allegation (2)
is merely an elaboration of allegation (1) and is properly dismissed as
a separate allegation. In allegation (1) appellant alleged that the
Human Resources Office failed to conduct a proper job search in order
to provide him with a reasonable accommodation. In allegation (2),
appellant alleged that the Human Resources Office failed to accommodate
him with a permanent position. Clearly, appellant is challenging the
agency's failure to accommodate his disability. An inquiry into the
matter raised in allegation (1) would encompass the issue in allegation
(2) as they are essentially identical, i.e., a failure to provide
appellant with reasonable accommodation. Accordingly, we AFFIRM the
agency's dismissal of allegation (2) since it states the same claim as
allegation (1), which was accepted for further processing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 5, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations
1The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty calendar days of the date
of the complainant's receipt of the dismissal or final decision.
See 29 C.F.R. � 1614.402(a). Because the agency failed to supply a
copy of the certified mail receipt, accompanied by a date of receipt
or any other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty calendar days of the
date of appellant's receipt of the final decision.