0120111288
04-20-2012
Tommy A. Russell, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Tommy A. Russell,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120111288
Agency No. 8Y1M10012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 14, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Computer Systems Administrator at the Agency's facility located at Kirtland Air Force Base, New Mexico.
On August 18, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when he learned on May 15, 2010, that the Agency initiated a commander-directed investigation (CDI) into his alleged misappropriation of $10,000 in government funds.
The record in this mater indicates that in response to a direction from the base commander, an Agency official initiated an investigation, in July 2009, into Complainant's involvement in the misappropriation of $10,000 in government funds set-aside to pay government incurred cellular phone bills and copier costs. The record further indicates that, at the time of the investigation, Complainant had previously filed Agency Case No. 8Y1M0810 in September 2008 concerning Complainant's allegations of a hostile work environment. During the course of the investigation of Complainant's 2008 complaint, he requested that the complaint be amended to include the following claim:
In Jul[y], 2009, [named individual] discriminated against me when he conducted a Commander Directed Investigation in response to my Congressional complaint ... [concerning] allegations that I had not followed directions in the payment of the Sprint and Konica bills..."
The record indicates that Complainant's prior complaint was amended to include Complainant's claims regarding the CDI regarding misappropriated government funds. Therefore, the Agency determined that Complainant's current complaint alleges the same claim that is already pending before the Agency, and dismissed the entire compliant in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
Alternatively, the Agency determined that the instant complaint is a collateral attack on another proceeding; i.e. the CDI investigation itself, and therefore, fails to state a claim for this reason as well. Finally, the Agency argues that the record indicates that the instant complaint is untimely. Specifically, the Agency indicates that Complainant contacted an EEO Counselor on May 15, 2010, regarding the CDI which was initiated in July 2009. The Agency determined that Complainant's EEO contact on May 15, 2010 was well beyond the applicable 45-day time frame provided in EEOC Regulations. Accordingly, the Agency alternatively dismissed the instant matter as untimely, pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Here, the record contains a copy of Complainant's amendment in his previously filed September 2008 complaint, identified as Agency No. 8Y1M0810. The amendment specifically clearly refers to the CDI initiated in July 2009 regarding the misappropriation of government funds. As such, the Agency's dismissal of the instant matter on the grounds stated above was proper.
Because we find that the Agency's dismissal for stating the same claim as one already pending before the Agency was proper, we need not address the Agency's alternate grounds for dismissal.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 20, 2012
__________________
Date
2
0120111288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111288