01991417
02-13-2001
Jesus Torres, Jr., Complainant, v. George J. Tenent Director Central Intelligence Agency, Agency.
Jesus Torres, Jr. v. Central Intelligence Agency
01991417
February 13, 2001
.
Jesus Torres, Jr.,
Complainant,
v.
George J. Tenent
Director
Central Intelligence Agency,
Agency.
Appeal No. 01991417
Agency No. 99-06
DECISION
On Monday, December 7, 1998, the complainant timely filed an appeal
with this Commission from a final agency decision dated November 5,
1998 concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted under 29 C.F.R. �
1614.405.
The issue presented is whether the agency properly dismissed the
complainant's claim that it failed to thoroughly investigate a prior
EEO complaint.
The complainant filed an EEO complaint against the agency claiming
that he was discriminated against on the bases of his national origin
(Hispanic/Puerto Rico) and reprisal (prior EEO activity) when (1) he was
harassed from June 9, 1998 to July 22, 1998, and (2) the agency failed
to thoroughly investigate his prior complaint.
In November 1998, the agency accepted claim 1 for investigation and
dismissed claim 2 on various procedural grounds. The complainant filed
an appeal.
On 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.<1> The regulation found at 29 C.F.R. � 1614.107(b) provides
that where the agency believes that some but not all of the claims in a
complaint should be dismissed, the agency shall notify the complainant
in writing of its determination, the rationale for that determination
and that those claims will not be investigated, and shall place a copy of
the notice in the investigative file. A determination not to investigate
certain claims is reviewable by an Administrative Judge (AJ) if a hearing
is requested on the remainder of the complaint, but is not appealable
until final action is taken on the remainder of the complaint.
The subsequent final agency decision which ruled on the merits of
claim 1 dismissed claim 2 again. It took the later action pursuant to
the revised regulation. The decision, which was dated June 16, 2000,
found no discrimination on claim 1. As the claimant did not appeal
this decision, the Commission will not review the agency's finding
of no discrimination. But by filing the instant appeal, the claimant
preserved for the Commission's review the agency's dismissal of claim 2.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that prior to the
request for a hearing, an agency must dismiss a claim that alleges
dissatisfaction with the processing of a previously filed complaint.
Accordingly, claim 2 is dismissed. The complainant is advised to raise
his contention that his previous complaint was not thoroughly investigated
with the individuals reviewing the previous complaint. EEOC Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 5, � IV, � D
(November 9, 1999).<2>
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
February 13, 2001
__________________
Date
1The regulations, as amended, may be found at the Commission's website
at www.eeoc.gov.
2MD-110 may be found at the Commission's website at www.eeoc.gov.