01994370_r
03-29-2001
Johnny B. Drummond, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Johnny B Drummond v. U.S. Department of the Army
01994370
March 29, 2001
.
Johnny B. Drummond,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01994370
Agency No. AWGYFO-98-07I0340
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 30, 1999 dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant contacted an EEO Counselor on September 20, 1998, claiming
that the agency engaged in reprisal against him (for filing prior EEO
complaints under Title VII) when it dismissed his September 17, 1993
EEO complaint, and then refused to process the complaint at the division
level on February 2, 1996. Complainant claimed that these actions were
improper and motivated by reprisal in light of the decision of this
Commission granting his request for reconsideration. In that decision,
the Commission reversed the agency's dismissal of the September 17,
1993 complaint, and ordered the agency to redefine complainant's
claims, conduct a supplemental investigation, and refer the case to
an EEOC Administration Judge to conduct a hearing. See Drummond
v. Department of the Army, EEOC Appeal No. 01962922 (November 27, 1996);
request for reconsideration granted, Drummond v. Department of the Army,
EEOC Request No. 05970369 (July 17, 1998).
When complainant's concerns regarding the purported improper processing
and dismissal of his September 17, 1993 complaint were not resolved during
EEO counseling, complainant filed the instant complaint on March 15, 1999.
The agency dismissed the instant complaint on the grounds that it was moot
because the agency processed the September 17, 1993 complaint pursuant
to the Commission's orders, and because complainant had been discharged
from the agency on May 6, 1996. The agency
additionally found that compensatory damages were not available for
claims regarding the improper processing of EEO complaints.
In this case, we find that while the agency dismissed the instant
complaint on the grounds of mootness, this case is properly analyzed in
terms of whether complainant alleged dissatisfaction with the processing
of a previously filed complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency shall
dismiss a complaint that alleges dissatisfaction with the processing of a
previously filed complaint. In the instant case, we find that complainant
is claiming that the agency improperly dismissed his September 17, 1993
complaint, and then improperly refused to process the same complaint
at a �division level� in February 1996. Therefore, pursuant to the
above cited regulation, complainant's claims of improper processing,
as set forth in the instant complaint, must be dismissed. Accordingly,
we AFFIRM the agency's dismissal of the instant complaint.
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
March 29, 2001
__________________
Date