0120122947
04-25-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120122947
Agency No. MSCG-2011-013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 8, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked with the Agency's Animal and Plant Health Inspection Service.
On July 6, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
The Agency failed to provide expedited mediation and settlement of complaints APHIS 99-0224 and FS-2008-01004 which were included in the Disparate Treatment uncertified class Agency case number FS-2008-00164.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614 107(a)(8) finding that Complainant merely alleged dissatisfaction with the processing of his prior complaints and matters that have been address by the Commission. Therefore, the Agency dismissed the complaint.
Complainant appealed without challenge to the Agency's characterization of the complaint. Further, Complainant provided the "ADR Fact Finding" report for another EEO complaint including his annotations to the report. In addition, he included information pertaining to a cartoon placed on his door on November 29, 2011. He also made comments regarding the breach of his settlement agreement. In response to Complainant's appeal, the Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614 107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-23, 5-25 to 5-26 (Nov. 9, 1999).
As an initial matter, we note that the Agency failed to provide the Commission with a copy of Complainant's formal complaint. The Agency indicated on appeal that Complainant did not file the formal complaint with the Agency. He filed the complaint directly with a contracting company which processes the Agency's EEO complaints which involve a conflict of interest. Despite the deficiency, we find that Complainant does not challenge the Agency's statement of the claim. Further, he included several documents challenging the processing of another EEO matter and claims of breach of a settlement agreement which has already been processed by the Commission. See Wilson v. Dep't of Agric., EEOC Appeal No. 0120122242 (Oct. 23, 2012). Therefore, we conclude that Complainant's formal complaint alleged his complaints regarding the processing of his prior EEO matters. Based on the record before us, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. 1614.107(a)(8), was proper.
CONCLUSION
Therefore, we AFFIRM the Agency's final decision.
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 25, 2014
__________________
Date
2
0120122947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122947