01A21786
06-30-2003
Joe Brown, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Joe Brown v. Department of the Navy
01A21786
June 30, 2003
.
Joe Brown,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A21786
Agency Nos. 98-63139-006 ["98-62593-006"];
and 99-63139-003
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matters.
This decision concerns two complaints<1>.
Complaint One was filed September 23, 1998. Complainant alleged that the
agency had discriminated against him on the bases of race (Caucasian),
sex (male), age (D.O.B. 6/23/43), and reprisal for prior EEO activity
and that the agency's actions contributed to a continuing hostile work
environment and disparate treatment when he was informed on August 27,
1998 that he was subjected to a reduction in force, when he learned on
August 4, 1998 that a miliary member was appointed the duties of METCAL
program manager, when he was denied overtime and on August 13, 1998,
when he learned that a military person attended a meeting in his former
commanding officer's office and discussed his EEO matters. By agency
letter dated January 28, 1999, the agency accepted for investigation his
claim that he was discriminated against when he was informed on August
27, 1998 that he was subjected to a reduction-in-force action. In this
appeal, the complainant is challenging the agency's dismissal of his
allegations that he was discriminated against when he learned on August
4, 1998 that his duties had been reassigned, denied overtime and that
a military person had discussed the particulars of his EEO cases.
In Complaint Two, filed on June 16, 1999, complainant alleged a pattern
of reprisal and harassment when he was constructively discharged,
denied time for a job search, denied time for EEO processing, assigned
to a small table, his informal complaint was not timely processed, he
received a decision from EEOC ordering the agency to comply, and he was
denied time to prepare an Office of Worker's Compensation claim.
With regard to his removal claims, we find the agency properly gave
complainant his right to appeal the RIF to the Merits Systems Protection
Board; and we note that the record reflects that he appealed to the
Board. On appeal to the EEOC, the complainant seeks administrative review
by this Commission of the agency's decisions regarding the non-removal
issues.
In accordance with 29 C.F.R. � 1614.405(a), the decision on an appeal
from an agency's final action shall be based on de novo review by the
Commission.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision. The preponderance of the evidence of record does not establish
that unlawful discrimination or reprisal occurred with regard to any of
the allegations regarding his duties, the table assignment and discussion
of his cases.<2> In addition, we affirm the agency's dismissal of the
rejected claims other than the removal claims, based on the untimeliness
of the complaint allegations, failure to state a claim and / or because
these matters state the same claim that has been decided by the agency
or this Commission or for which relief has been granted.
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
June 30, 2003
__________________
Date
1 For the purpose of clarity of the record, we note that this appeal
covers agency numbers 98-63139-006 and 99-63139-003. We also note that
agency number 98-63139-006 was initially referenced by the Commission
as 9862593006.
2 Complainant should have been provided with his appeal rights regarding
the agency's decision on Claim One. Since the complainant filed this
appeal, notwithstanding the absence of notice, complainant was not harmed
by the agency's oversight.