01a13887
08-08-2002
Zernie A. Parker, Jr., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Zernie A. Parker, Jr. v. Department of the Army
01A13887; 01A20847
08-08-02
.
Zernie A. Parker, Jr.,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 01A13887; 01A20847
Agency No. AEGBFO 98 12I0300
Hearing No. 170-A0-8496X
DECISION
Zernie A. Parker, Jr. (hereinafter referred to as complainant) filed
timely appeals from the April 3 and October 29, 2001, final decisions
of the Department of the Army (hereinafter referred to as the agency)
concerning a complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The appeals are timely filed (see 29 C.F.R. � 1614.402(a))
and are accepted in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO counselor in October 1998, and file a formal
complaint dated February 10, 1999, claiming discrimination based on
race/color and reprisal. He claimed that (a) he had been wrongly assigned
to a location not within 35 miles of his home, as required by a consent
decree in which he was a class member; (b) the agency refused to train
him for other positions; (c) his work environment was hostile as shown
by damage to his car in an agency parking lot; (d) his previous position
of cook, which had a higher rate of pay than his current position, was
eliminated in July 1997; (e) the agency was in breach of an agreement
regarding his sick leave; and (f) the agency failed to promote him.
The agency accepted claims (a), (b), and (c) for investigation, and
complainant eventually requested a hearing before an EEOC Administrative
Judge (AJ). On May 6, 1999, the agency dismissed (d) as untimely and
(e)-(f) for failure to raise with an EEO counselor. Complainant filed an
appeal regarding the dismissed issues, which, pursuant to the Commission's
new regulations, were remanded to the AJ for consolidation with the
accepted claims. EEOC Appeal No. 01A04116 (March 15, 2001).
The Commission took this action believing that the accepted issues were
pending before the AJ; however, on March 7, 2001, the AJ had issued
a decision without a hearing, finding no discrimination. With regard
to the AJ's decision on the three accepted issues, the agency issued a
final decision adopting the AJ's decision. Complainant filed an appeal
from this decision on May 2, 2001, and it was docketed as EEOC Appeal
No. 01A13887.
With regard to the remanded issues, a supervisory AJ dismissed them on
September 28, 2001, and referred them back to this office, finding that,
since the three accepted issues were pending appeal with OFO, all issues
were better addressed in that forum. Following that decision, the agency
issued a second final decision, and complainant filed a second appeal
on November 20, 2001, which was docketed as EEOC Appeal No. 01A20847.
Issues (a)-(c) (EEOC Appeal No. 01A13887)
After a review of the record, including statements and arguments not
addressed herein, we find that the Administrative Judge's issuance of a
decision without a hearing on issues (a)-(c) was appropriate and that
the preponderance of the evidence of record does not establish that
discrimination occurred.
Issues (d)-(f) (EEOC Appeal No. 01A20847)
The agency dismissed complainant's claim (d), regarding elimination
of his previous position of cook, as untimely. Based on our review of
the record, we find that the agency acted properly. The Commission's
regulations require that a complainant bring his/her complaint to the
attention of an EEO counselor within 45 days of the alleged discriminatory
event or the effective date of an alleged discriminatory personnel action.
29 C.F.R. �1614.105(a)(1). The record shows that complainant failed
to bring these matters to the attention of an EEO counselor within 45
days and failed to offer any explanation or justification for the delay.
29 C.F.R. �1614.107(a)(2).
The agency also dismissed claims (e)-(f) for failure to raise these
issues with the EEO counselor. The Commission's regulations require
aggrieved persons to raise all matters with an EEO counselor. 29 C.F.R. �
1614.105(a). Complainant did not raise issues regarding his sick leave,
a prior agreement, or lack of promotions with the EEO counselor, nor
are they like or related to the other issues raised with the counselor.
For this reason, we find that the agency properly dismissed these claims.
29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the agency's final decisions were proper and are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____08-08-02_____________
Date