01997024
02-23-2001
Joseph P. Paul, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.
Joseph P. Paul v. General Services Administration
01997024
February 23, 2001
.
Joseph P. Paul,
Complainant,
v.
Thurman M. Davis, Sr.,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 01997024
Agency No. 99-R5-5PS2D-JPP-05
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 13, 1999, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
In the instant complaint, complainant claimed that on March 30, 1999,
he learned that he had been subjected to reprisal (for filing prior EEO
complaints under Title VII and the Age Discrimination in Employment Act of
1967) when he was informed that an agency draft report of investigation
identified him as a felon suspect. Complainant contends that at the
beginning of the investigation, he was told that he would only be a
witness in the investigation at issue, and that the agency identified
him as a suspect in retaliation for his prior EEO activity, noting that
there was no justification for naming him as a suspect. As a result
of this report, complainant further claimed that he was not selected
for a certain position (Supervisory Physical Security Specialist), and
that all of his chances for future promotions were harmed by the report.
Complainant additionally avers that naming him as a suspected felon was
a criminal act on the part of the agency which defamed him, caused an
invasion of his privacy, created an adverse impact on his job performance,
and continued his already hostile work environment.
In its decision, the agency dismissed the complaint for failure to state
a claim and on the alternative grounds that the same claim was pending
before the Commission. The instant appeal followed.
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.
The record discloses that complainant previously filed a complaint
(98-R5-5PS-2D-JPP-01), claiming that the agency's initiation of the
investigation at issue constituted harassment. The record also shows that
the agency dismissed this complaint, in a decision dated December 19,
1997, and that complainant did not appeal this decision. Therefore,
we find that the instant complaint, including the harassment claim,
was properly dismissed by the agency on the grounds that this matter
has been previously decided by the agency.
Furthermore, review of the record confirms that complainant's complaint
(98-R5-5PS-2D-JPP-07) regarding his non-selection for the position of
Supervisory Physical Security Specialist was adjudicated by the agency in
a decision dated December 28, 1998, and that this matter is pending on
appeal with the Commission and is docketed as Appeal No. 01992256. Thus,
to the extent that the matter regarding non-selection to the Supervisory
Physical Security Specialist position is raised as a separate claim in
the instant complaint, we determine that the agency properly dismissed
it on the grounds that the same claim is pending before the Commission.
Accordingly, after careful review of the entire record, including
the statements of the parties on appeal, and arguments and evidence
not specifically referenced in this decision, we AFFIRM the agency's
dismissal of the instant complaint.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Because we are affirming the agency's dismissal on the grounds that
the instant complaint was previously adjudicated by the agency and/or
is pending before the Commission, we will not address the agency's
alternative grounds for dismissal.