01A24299
03-04-2003
George C. McCoy, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
George C. McCoy v. Department of the Army
01A24299
March 4, 2003
.
George C. McCoy,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A24299
Agency No. ARTRADOC02MAY0001
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 10, 2002, dismissing 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. In its final decision, the agency characterized complainant's
complaint as alleging that he was subjected to discrimination on the
bases of race and in reprisal for prior EEO activity when the agency
took deliberate action to prevent him from having an EEOC hearing for
a previous complaint he filed in November 1995.
The record reveals complainant filed a previous EEO complaint dated
November 7, 1995. Therein he alleged that the agency subjected him to
discrimination on the bases of race and reprisal when:
Complainant's immediate supervisor allowed the table of distribution
allowance to be changed so that a coworker could be promoted over him;
Complainant's supervisor favored another co-worker while demoting
complainant from his work leader position;
Complainant's supervisor allowed a coworker to assume his position during
his absence while directing complainant to perform the coworker's duties;
The agency wrongfully demoted complainant and certified incorrect
information on the SF-52 form; and
On November 12, 1992, complainant was denied an equal opportunity for
training and ostracized.
In a letter dated November 28, 1995, the agency dismissed complainant's
complaint for untimely EEO Counselor contact. Complainant appealed
the dismissal to the Commission. The Commission affirmed the agency's
dismissal in a decision dated September 4, 1996. McCoy v. Department
of the Army, EEOC Appeal No. 01961855. In a decision dated March 4,
1999, the Commission denied complainant's request for reconsideration.
McCoy v. Department of the Army, EEOC Request No. 05970851. On March
29, 1999, complainant filed a civil action (Case Number 3:99-0843-17BC)
raising the same issues from his EEO complaint in the United States
District Court for the District of South Carolina, but added age as basis
of discrimination. The civil action was dismissed by a magistrate judge
on March 17, 2000. The magistrate judge dismissed complainant's civil
action as untimely filed and for failing to exhaust his administrative
remedies with respect to his age discrimination claim. The United States
Court of Appeals for the Fourth Circuit affirmed the dismissal on August
2, 2002.
In the instant complaint filed May 24, 2002, complainant alleges that
he was subjected to unlawful discrimination on the bases of race and
in reprisal for prior EEO activity when he was denied an EEOC hearing
for his complaint filed October 30, 1995, and when agency officials
�organize[d] a conspiracy to have me demoted and rid themselves of me....�
In the final decision that is the subject of the instant appeal, the
agency dismissed complainant's complaint, pursuant to 29 C.F.R. �
1614.107(a)(3). Specifically, the agency dismissed complainant's
complaint for stating the same claim decided by a United States District
Court in a previous civil action.
As an initial matter, we note that although the agency's final decision
characterized the instant complaint as only alleging that complainant
was wrongfully denied an EEOC hearing for his previous complaint, we
note that the instant complaint also alleges that the agency engaged in
discrimination when it demoted complainant. Further, although the agency
dismissed complainant's complaint for stating the same claim decided
by a federal court, we determine that complainant's claim that he was
denied a proper EEOC hearing is more properly analyzed as concerning
dissatisfaction with the processing of complainant's previous complaint.
EEOC Regulation 29 C.F.R. �1614.107(a)(8) provides that the agency
shall dismiss an entire complaint that alleges dissatisfaction with
the processing of a previously filed complaint. Moreover, under the
Commission's Management Directive 110, dissatisfaction with the processing
and adjudication of prior complaints must be raised within the underlying
complaint, not a new complaint. See EEO MD-110, (November 9, 1999),
Chapter 5. Complainant's instant claim that he was wrongly denied an EEOC
hearing concerns the processing of his previous complaint. Therefore, the
Commission dismisses this matter pursuant to 29 C.F.R. �1614.107(a)(8).
Regarding complainant's remaining claim that the agency subjected him
to unlawful discrimination when it demoted him, we determine that this
concerns the same matter raised in complainant's previous EEO complaint
and decided by the Commission. The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. Consequently, we dismiss this matter pursuant to
29 C.F.R. � 1614.107(a)(1) .
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint for the reasons set forth in this decision.
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
__March 4, 2003________________
Date