01997102
12-07-2000
Don C. Terrill, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Don C. Terrill v. Department of Labor
01997102
December 7, 2000
.
Don C. Terrill,
Complainant,
v.
Alexis M. Herman,
Secretary,
Department of Labor,
Agency.
Appeal No. 01997102
Agency No. 9-11-118
DECISION
On September 17, 1999, complainant filed an appeal with this Commission
from an agency decision pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination.
Specifically, complainant claimed that he was denied a fair and impartial
investigation and decision on his prior complaint (Case No. 9-11-035)
as a result of the Civil Rights Center Director's participation and
supervision. Informal efforts to resolve complainant's concerns were
unsuccessful. Subsequently, complainant filed a formal complaint,
dated May 7, 1999.
On August 18, 1999, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency noted that in his prior
complaint (Case No. 9-11-035), complainant claimed he was discriminated
against based on his national origin (Confederate-American) when he was
denied permission to enter a display celebrating Confederate-Americans
in the agency's Diversity Day program. The agency determined that the
complaint was properly dismissed by the Director for failure to state
a claim. According to the agency, because the dismissal was required
as a matter of law, the instant case must also be dismissed for failure
to state a claim.
As an initial matter we find that though the agency dismissed the
complaint for failure to state a claim, this case is properly analyzed
on the grounds of whether complainant alleged dissatisfaction with
the processing of a previously filed complaint. See 29 C.F.R. �
1614.107(a)(8).
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that claims
alleging dissatisfaction with the processing of a prior complaint must
be dismissed. Dissatisfaction with the EEO process must be raised within
the underlying complaint, not a new complaint. See EEOC-Management
Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26.
On appeal, complainant asserts that �[m]y complaint is based on action
taken by the Director, Civil Rights Center to dismiss my EEO complaint
of 27 November 1998....� In addition to attacking the actions of
the Director, complainant disputes the cases and reasoning utilized
by the agency in dismissing his prior complaint. Therefore, the
Commission finds that the complaint is properly dismissed pursuant to
29 C.F.R. �1614.107(a)(8), as it concerns the processing of his prior
complaint. Rather than filing a new complaint, complainant should
have raised his concerns in his appeal of the prior complaint (Terrill
v. Department of Labor, EEOC Appeal No. 01992831 (May 31, 2000)) or
should have contacted the agency official responsible for the quality
of complaint processing. Accordingly, the agency's decision to dismiss
the complaint was proper and is hereby AFFIRMED.
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
December 7, 2000
__________________
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.