Abner Merriweather, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01A13202_r (E.E.O.C. Sep. 12, 2002)

01A13202_r

09-12-2002

Abner Merriweather, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Abner Merriweather v. Department of the Army

01A13202

September 12, 2002

.

Abner Merriweather,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A13202

Agency No. ANBKFO0103B0190

DECISION

Complainant appealed to this Commission from the agency's dismissal of

his employment discrimination complaint. In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(African-American) and reprisal for prior EEO activity when:

The EEO Counselor from a prior complaint notified management that

complainant had a financial problem and that management had an obligation

to notify security;

The EEO Counselor invaded complainant's privacy by pulling complainant's

credit report from the Credit Bureau through Redstone Federal Credit Union

(RFCU) on February 3, 1998.

Instead of counseling complainant during a prior informal inquiry, the

EEO Counselor invaded complainant's privacy by investigating all of his

RFCU accounts, in particular his checking account.

The EEO Counselor was busy investigating complainant and providing

false and misleading information to his superiors in an attempt to get

complainant fired;

The EEO Counselor, based on two letters dated April 8, 1998, and the

sworn affidavits of two employees, somehow gained illegal entry into

complainant's financial records.

Management denied complainant his rights by not allowing him to know about

the alleged security and financial allegations. Management did not follow

proper procedures in accordance with agency regulations and guidelines.

Management jeopardized complainant's career by unquestioningly accepting

the word of an anonymous stranger, without asking for verification or

proof of credibility; and

Management conspired with the EEO Office to get complainant fired because

of his prior EEO complaint. The above claims resulted in a hostile work

environment for complainant taking part in protected activity.

The agency dismissed the complaint for raising the same claim previously

adjudicated on its merits.<1> In a prior complaint, complainant

alleged, �On or about April 8, 1998, complainant's supervisor submitted

complainant's name to the agency's Security and Intelligence office due to

complainant's alleged financial difficulties.� An EEOC Administrative

Judge, and the agency found no merit to the claim, and complainant

appealed, which appeal is pending in EEOC Appeal No. 01A11792.

The agency may dismiss matters alleging the same claim pending in a

prior complaint. See 29 C.F.R. � 1614.107(a)(1). The prior case, and

complainant's present claims, all involve the agency's investigation of

complainant's security clearance. The only difference between the prior

complaint and complainant's present claims, is complainant's knowledge

of who informed management that complainant may be having financial

difficulties. It involves the same incident, time, and parties as

alleged in the prior complaint. Therefore, this matter is identical to

the prior complaint. Accordingly, the agency's dismissal is 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

September 12, 2002

__________________

Date

1The agency also dismissed the complaint for

untimely counselor contact, failure to state a claim, and alleging harm

from a proposed action.

2Since we are affirming the agency's dismissal for stating the same

claim previously raised, we will not address the agency's alternative

grounds for dismissal.