01A31585_r
09-11-2003
Michael J. Beattie, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Michael J. Beattie v. Defense Logistics Agency
01A31585
September 11, 2003
.
Michael J. Beattie,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A31585
Agency No. DO-01-002
Hearing No. 100-A2-7750X
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final action, following an Order of Dismissal of an EEOC Administrative
Judge (AJ), dated December 9, 2002, granting complainant's request to
withdraw the instant complaint from the EEO complaint process.
The record reveals that complainant, a former EEO Specialist, GS-0260-11,
at the agency's headquarters in Fort Belvoir, Virginia, filed a formal
EEO complaint on September 10, 2001. Therein, complainant alleged that
he was the victim of unlawful employment discrimination in reprisal for
prior EEO activity when it refused to process his workers' compensation
claim and dismissed a prior EEO case without notifying him and giving
him the chance to appeal.<1>
At the conclusion of the investigation, complainant received a copy of
the investigative report and
requested a hearing before an EEOC AJ. However, by Motion to Dismiss
dated November 22, 2002, complainant requested that the AJ �dismiss his
case� because he purportedly received harassing phone calls from his
former supervisors concerning his claims.
Complainant further stated that he had submitted a motion requesting
that an opposing agency counsel be disqualified from representation in
the instant case and had stated that if that motion for disqualification
were not granted, he would then request his case be dismissed.
On August 27, 2002, the AJ issued an Order of Dismissal granting
complainant's request to withdraw his EEO complaint from the EEO
process. In his Order, the AJ determined that the only issue that was
before him concerned complainant's claim regarding the processing of
an OWCP claim. The AJ further determined that all of complainant's
other concerns had been addressed previously through a settlement
agreement negotiated through the Merit Systems Protection Board (MSPB)
and that complainant's complaint should be addressed through the MSPB,
and not through the EEO process.<2> Further, the AJ concluded that
he denied complainant's request to disqualify the agency's Office of
General Counsel from representation in the instant case because the
agency voluntarily withdrew a former agency counsel who was involved
in complainant's prior complaints and substituted a representative
from a different office in another state. The AJ found the substitute
representative presented no conflict of interest in representing the
agency in the instant matter because he had no background information
concerning complainant's case. Therefore, the AJ granted complainant's
request that his complaint be dismissed.
The agency did not issue a final order within forty days of receipt of
the AJ's decision, and the decision of the AJ became the final action
of the agency, pursuant to 29 C.F.R. � 1614.109(i).
On appeal, the complainant states that his complaint �is not a collateral
attack on the OWCP process but rather an effort to assist the OWCP
process.� Complainant further argues that his case should be remanded
because the AJ declined to have a hearing to determine whether the MSPB
settlement agreement was valid because it was a result of a �blackmail
threat.� Furthermore, complainant argues that the AJ never ruled on
his motion to disqualify an agency representative from representation
in the instant case. Moreover, complainant argues although the agency
representative withdrew from representation in the instant case, that
the AJ �should have rule on whether to disbar him from all future cases.�
The record contains a copy of complainant's Motion to Dismiss the instant
complaint, dated November 22, 2002.
After a careful review of the record, we find that complainant
specifically requested that his instant case be dismissed. We find that
the AJ properly issued an Order of Dismissal, granting complainant's
request that his complaint be dismissed. Therefore, the agency's final
action is AFFIRMED.
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
September 11, 2003
__________________
Date
1The record reveals that on or about May 17,
2000, complainant resigned from agency employment.
2The record contains a copy of complainant's MSPB settlement agreement
dated December 5, 2000, resolving complainant's MSPB appeal (MSPB Docket
No. DC-1221-01-0820-W-1) and EEO complaint (Agency No. DL-FY00-01,
which was previously identified as Agency No. ZA-00-002). Therein, the
agency agreed to provide complainant with a neutral reference letter,
signed by the Director of Equal Employment Opportunity, for complainant's
use in seeking future employment; and that complainant agreed to neither
apply for nor accept employment as an employee with the agency.