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.