01a03647
07-24-2000
Daniel L. Garibay, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Daniel L. Garibay v. Department of the Air Force
01A03647
July 24, 2000
.
Daniel L. Garibay,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03647
Agency No. AL900000464
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dismissing his complaint of unlawful employment discrimination
brought under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complainant
against the agency alleging that he had been subjected to reprisal when
the agency assigned a biased investigator to investigate his prior EEO
complaint (cited by the agency as Base Docket No. 9V1M0089) and otherwise
improperly processed this complaint to his detriment.
The agency dismissed the complaint finding that it was a �spin-off� from
the prior complaint. Neither party has submitted a statement on appeal.
Volume 64 fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(8)) provides that the agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed
complaint. In the instant case, complainant is claiming investigator
bias and other improper handling of a prior EEO complaint. Therefore,
under the Commission's regulation, the agency is required to dismiss
complainant's claims of improper processing. When claims of improper
processing are raised, the complainant should be referred to the agency
official responsible for the quality of complaint processing, and the
agency should earnestly attempt to resolve any dissatisfaction with the
complaint process as early and expeditiously as possible. EEOC-MD 110
(5-25), as revised, November 9, 1999. Complainant is therefore advised
to contact an official in the agency's EEO office, if he believes that
his prior complaint has been improperly processed.
Accordingly, we AFFIRM the agency's DISMISSAL of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.