01A23566
09-26-2002
Mostafa Eldakdoky, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Mostafa Eldakdoky v. U.S. Department of Agriculture
01A23566
September 26, 2002
.
Mostafa Eldakdoky,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A23566
Agency No. 010706
DECISION
In a complaint dated July 19, 2001, complainant alleged that he was
subjected to discrimination on the bases of national origin (Egyptian),
sex (male), and in reprisal for prior EEO activity when he was not
selected for a position as Food Safety and Inspection (FSIS) detail
under Vacancy Announcement No. F1-FAS-125. Complainant filed another
complaint dated July 20, 2001, alleging that he was discriminated
against based on his national origin and religion when he received a
notice that his assignment with Foreign Agricultural Service (FAS),
International Trade Policy would be terminated at the end of July 2001.
After consolidating the July 19, 2001 and July 20, 2001 complaints,
the agency dismissed the complaints on the grounds that the claims
raised therein are identical to the claims in complainant's prior
complaint number 010518 dated May 4, 2001, which has been accepted
for investigation by the agency. The agency stated that the only
difference between the complaint number 010518 and the present claims is
the addition of religion as a basis and should complainant wish to add
the basis of religion to the complaint number 010518 he should provide
this information to the investigator assigned this case.
On appeal, complainant agrees that the two dismissed claims in the
present complaint, number 010706, were included in his prior complaint,
number 010518; however, complainant states that three other nonselection
claims and a claim regarding an investigation by IG were not addressed.
The record contains a revised acceptance letter for complaint
number 010518 dated September 28, 2001, identifying the issues to be
investigated. The issues include the claims set forth in the present
complaint, number 010706, and include three additional nonselections.
By letter dated April 23, 2002, the agency notified complainant that
the issue regarding the investigation by IG was being incorporated into
complaint number 010706.
Upon review, we find that the claims raised in complaint number 010706
(complainant's nonselection and the notice of the termination of his
assignment) were properly dismissed for stating the same claim as a
prior complaint.
We find, however, that there appears to be some confusion as to the
issue regarding the investigation by IG. The agency's April 23, 2002
letter indicates that this issue will be addressed in complaint number
010706, however, that issue is not addressed in the May 20, 2002 final
decision appealed herein. The Commission deems the agency's failure
to be tantamount to a dismissal of that matter. EEOC Regulation 29
C.F.R. � 1614.107(a)(1) also provides that a complaint may be dismissed
for failure to state a claim. The Commission has previously held that
being subject to an Office of Inspector General investigation does not
render an individual aggrieved under the EEOC Regulations. See Johnson
v. Department of the Navy, EEOC Request No. 05960699 (April 16, 1998);
Mattocks v. Department of the Navy, EEOC Request No. 05950549 (August
29, 1996). Therefore, we find that the dismissal of the claim regarding
the investigation by the IG is proper.
Accordingly, the agency's final decision is hereby 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 26, 2002
__________________
Date