01A33244_r
02-05-2004
Anthony S. Dobbins, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
Anthony S. Dobbins v. Tennessee Valley Authority
01A33244
February 5, 2004
.
Anthony S. Dobbins,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A33244
Agency No. 1116-2001013
DECISION
Complainant appeals to the Commission from the agency's March 31, 2003
decision dismissing complainant's complaint. The agency did not discretely
frame the claims in the decision. The agency, in its decision, describes
the complaint as having "new" and "old" claims. The agency dismissed the
"new" claims, defined as "reassignment from night shift to day shift,
training in all aspects of relevant building air conditioning systems,
designation as a dual-rate foreman, on the job training for foreman,
consideration for next available foreman position, on the job training
of the 'CSI,' and related matters," for untimely EEO Counselor contact
pursuant to 29 C.F.R. �1614.107(a)(2). The agency dismissed the "old"
claims, defined as "management officials should have changed the effective
date of Complainant's promotion to Journeyman General Building Mechanic
from February 6, 1995, to November 24, 1994, and should have paid him
the difference in salary," for raising the same claim that has been
decided or pending before the agency or Commission, pursuant to 29
C.F.R. � 1614.107(a)(1).
As way of background, complainant filed previous complaints that were
resolved by a settlement agreement. Complainant alleged breach of the
settlement agreement. In response, the agency issued a decision finding
breach of the settlement agreement. Complainant appealed that decision
to the Commission. The Commission issued a decision on August 11, 1998.
Dobbins v. Tennessee Valley Authority, EEOC Appeal No. 01973186 (August
11, 1998). The Commission found breach of the settlement agreement
and ordered inter alia, specific performance. Id. The Commission also
ordered: "[i]f the appellant seeks EEO counseling regarding any of the
allegations of discrimination and retaliation brought to the agency's
attention in connection with his breach of settlement allegations,
including the allegations raised in this appeal, the agency should
use the dates it first learned of each allegation as the dates of the
appellant's EEO counselor contact." Id.
The record does not contain enough information to render a decision
in this case. Complainant appears to be arguing a variety of claims
including: (1) his rotation was changed; (2) from 1993 to present,
he was denied training; (3) he was not properly paid or given proper
credit for annual leave, sick leave, overtime hours or holiday hours;
specifically, he was paid as an apprentice and not a journeyman;
(4) his seniority date was not re-computed; (5) his effective date of
promotion should be November 24, 1994, instead of February 6, 1995; (6)
there were problems implementing his settlement agreement; and (7) he was
placed on night shift on January 15, 1996. It is not clear if these are
all the claims complainant intended to raise or whether some of these
claims were meant as background information. Further, the record does
not contain the dates of the incidents or evidence as to when complainant
initiated the EEO process with regard to any of the claims. Therefore,
we shall remand the complaint to the agency so that the agency may contact
complainant to clarify the claims in the complaint, the dates of those
claims, and the date complainant initiated the EEO process for each claim.
The agency's decision dismissing complainant's complaint is VACATED and
we REMAND the matter to the agency for further processing in accordance
with this decision and Order herein.
ORDER
The agency shall contact complainant in order to clarify the claims
complainant is raising in the complaint (not background information),
the dates of each claims, and when complainant initiated the EEO
process with regards to each claim. Based on the foregoing, the agency
shall determine whether the claims are timely or previously raised in a
complaint pending before or decided by the agency or Commission. Within
30 days of the date this decision becomes final the agency shall either
issue a letter accepting the complaint or shall issue a new decision
clearly defining the claims and dismissing the complaint. A copy of the
decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
February 5, 2004
__________________
Date