01a50912
01-31-2005
Benjamin F. Robinson, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Benjamin F. Robinson v. Department of the Army
01A50912
01-31-05
.
Benjamin F. Robinson,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A50912
Agency No. ARMCCOY04JUN0092
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 20, 2004, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior EEO activity when the agency �did
not attempt to take corrective actions to make [him] whole, following
the findings of discrimination and reprisal determined September 3, 2002.
Discrimination and reprisal have continued and the agency has not complied
with the order by OFO-EEOC, dated, May 26, 2004.�<1>
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds that the complaint states the same claim that is pending
before or has been decided by the agency or Commission. Additionally,
it dismissed the complaint for abuse of the EEO process, pursuant to 29
C.F.R. � 1614.107(a)(9).
On appeal, complainant asserts that the agency has created a long
lasting hostile situation since October 12, 1997 through �discriminatory
inconsistences, attempts not to make whole, how the agency's offer
was not consistent with similar situated employees, and how the agency
was making concerted efforts to circumvent the decision and orders� of
the Commission.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that a complaint
should be dismissed if it states the same claim that is pending or
has already been decided by the agency or Commission. The Commission
has interpreted this regulation to require that the complaint must set
forth the "identical matters" raised in a previous complaint filed
by the same complainant in order for the subsequent complaint to be
rejected. Russell v. Department of the Army, EEOC Request No. 05910613
(August 1, 1991). The agency has the burden to provide evidence and/or
proof to support its final decisions. Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
In the present case, complainant claims that he has not been made whole,
and that the agency has not complied with the Commission's order in EEOC
Appeal No. 01A31123. The record reflects that complainant has filed
a Petition for Enforcement, Benjamin Robinson v. Department of the
Army, EEOC Petition No. 04A50004, on these matters, and that Petition
is currently pending before the Commission. Complainant also asserts
that his subject complaint concerns discrimination and reprisal that has
continued at the agency, but he fails to identify with any specificity
the nature of this alleged discrimination. We note in this regard that,
while complainant identifies a memorandum to the file which documents
one manager's inappropriate remarks regarding complainant, this incident
alone is insufficient to state a claim, and complainant admits that he
became aware of said memorandum sometime in 1999 or 2000. See 29 C.F.R. �
1614.107(a)(1) and (2).
Accordingly, the Commission holds that the agency's decision to dismiss
complainant's formal EEO complaint for stating the same claim that is
pending before the Commission was proper, and the dismissal is therefore
affirmed.<2>
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
____01-31-05______________
Date
1 The Commission found that the agency
discriminated against complainant and ordered appropriate relief in
Benjamin Robinson v. Department of the Army, EEOC Appeal No. 01A31123
(May 26, 2004).
2 Because we affirm the agency's decision to dismiss the complaint for
the reason stated herein, we find it unnecessary to address the agency's
decision to dismiss this claim on alternate grounds.