01a51898
09-30-2005
Joseph S. Fanelli, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Joseph S. Fanelli v. U.S. Department of Agriculture
01A51898
September 30, 2005
.
Joseph S. Fanelli,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51898
Agency No. USDA CR 040688
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8), on the grounds
that it alleges improper processing of a previously filed EEO complaint.
On August 6, 2004, complainant contacted an EEO Counselor and alleged
that he was subjected to discrimination in reprisal for prior EEO
activity when, without his consent, the Office of Civil Rights (OCR)
included the issue of a proposed termination in a formal EEO complaint
(Agency No. 040326). Complainant claimed that the agency's OCR took
such action to interfere with the viability of the grievance he filed
on his termination.
Informal efforts to resolve the matter were not successful and on
September 22, 2004, complainant filed a formal complaint, claiming that
he was the victim of unlawful employment discrimination in reprisal for
prior protected activity. Specifically, complainant claimed that the
OCR included the issue of his termination in the acceptance of formal
complaints. Complainant alleged that he never raised the claim of his
termination either informally or in a formal complaint. Complainant
further alleged that the inclusion of this matter in the acceptance
letter of a formal complaint prevented his pursuit of the termination
through the negotiated grievance process.
In a final decision dated December 10, 2004, the agency dismissed the
instant complaint on the grounds that it alleged dissatisfaction with
the processing of a previously filed EEO complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency
shall dismiss a formal complaint that alleges dissatisfaction with the
processing of a previously filed EEO complaint.
Upon our review of the record, we determine that the matter raised in
the instant complaint, in essence, addresses the agency's purported
improper processing of a previously filed EEO complaint. Specifically,
complainant claims that by including the issue of his termination in
a previously filed EEO complaint, identified as Agency No. 040326,
the agency hindered complainant's ability to pursue the matter of his
termination within the negotiated grievance process.
Accordingly, the agency's decision to dismiss the instant complaint was
proper and is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
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
September 30, 2005
__________________
Date