Joseph P. Paul, Complainant,v.Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionFeb 23, 2001
01997024 (E.E.O.C. Feb. 23, 2001)

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.