01983176
04-29-1999
Harvey B. Corbett, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Harvey B. Corbett v. Department of the Army
01983176
April 29, 1999
Harvey B. Corbett, )
Appellant, )
)
v. ) Appeal No. 01983176
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
February 17, 1998 (dismissing allegations 1 - 14) and amended on February
19, 1998 (dismissing allegations 15 and 16) dismissing a portion of
appellant's complaint. The agency dismissed allegations 3(b), 3(d),
5, 8, 9, 10, and 12 for failing to state a claim. The agency dismissed
allegations 1, 2, 3(a), 3(b), 3(c), 4, 6, 7, 11, 13, and 16 for stating
the same claim that is pending before or has been decided by the agency
or the Commission. The agency dismissed allegations 4, 14, and 15 on
the grounds that appellant failed to timely contact an EEO Counselor.
The agency also found that appellant withdrew allegation 3(e).
The Commission finds that the complaint, as defined by the agency,
is too vague to find that any of the allegations are proper for
dismissal pursuant to 29 C.F.R. �1614.107 prior to an attempt by the
agency to clarify the complaint. The agency has dismissed a portion
of the complaint for untimely EEO Counselor contact, but has failed to
provide dates for the allegations and initial EEO Counselor contact.
The agency dismissed a portion of the complaint for failing to state a
claim, but it appears that some of the allegations may simply be examples
of appellant's claim of harassment. In such circumstances the agency
should consider whether all of the harassment allegations together state
a claim of harassment. While some of the incidents may add no or little
weight to the harassment allegation, this does not mean the harassment
allegation fails to state a claim. The agency has dismissed a portion
of the complaint for stating the same claim as previously raised by
appellant but has not specifically indicated in what complaint appellant
raised the same allegations.
The agency's definition of the dismissed portion of the complaint appears
to quote the allegations exactly as stated in appellant's complaint.
There is no indication in the record that the agency contacted appellant
in an attempt to clarify the complaint. The complaint does not contain
dates of the incidents or names of the alleged discriminating officials.
The vast majority of the incidents in the complaint are vague (e.g.,
"Disparate treatment resulting from a pattern of vicious lies discrediting
me and other Black educated males.") and need specificity to permit
investigation. Furthermore, some of the allegations may possibly be
combined. Therefore, the Commission shall remand the matter so that the
agency can contact appellant to clarify the complaint. After clarifying
the complaint the agency may, if appropriate, reissue a decision
dismissing any portion of the complaint pursuant to 29 C.F.R. �1614.107.
The agency's decision dismissing a portion of the complaint is VACATED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency shall contact appellant to clarify the complaint and the agency
shall redefine the complaint to reflect the understanding of the complaint
by the parties. Within 60 days of the date this decision becomes final
the agency shall issue a letter to appellant accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the letter accepting the complaint or new decision dismissing the
complaint must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
April 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations