Orlando R. Wood, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01971308 (E.E.O.C. Apr. 16, 1999)

01971308

04-16-1999

Orlando R. Wood, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Orlando R. Wood v. Department of the Navy

01971308

April 16, 1999

Orlando R. Wood, )

Appellant, )

) Appeal No. 01971308

v. ) Agency Nos. DON 96-68925-009

) DON 96-68925-009A

Richard J. Danzig, ) DON 96-68925-009B

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

On November 25, 1996, appellant filed a timely appeal of a November 5,

1996 final agency decision which dismissed 10 of twelve allegations of

three consolidated complaints on the grounds that the allegations stated

the same claims as a prior complaint which was settled.

In its final decision, the agency identified the dismissed allegations

of appellant's consolidated complaints<1> in the following manner:

1. Failure to file your on-the-job injury papers.

2. Removal of your medical records from your personnel file.

3. Failure to counsel you concerning workmen's compensation.

4. Failure to provide light duty to you as a Black employee, but assigned

light duty to White employees.

5. Failure to provide handicap parking.

6. Since your injury on the job, you have been constantly harassed.

7. The supervisor has failed to provide the same working conditions for

you and one other Black employee as provided for White employees.

8. White employees' work stations have telephones to make and receive

calls outside of the base.

9. White employees have exclusive use of government vehicles. When their

vehicles are parked until they return to work, the vehicle that the two

Blacks have to use is taken from us whenever anyone has someone to go

off base. We are left to walk or jobs are put on hold until we get the

vehicle back.

10. I was offered a promotion to a WG-10 maintenance mechanic if I

dropped my EEO complaint, however, I never received the promotion.

Also a White employee who was a carpenter WG-10 is now a maintenance

mechanic WG-10 and I still have not been promoted to WG-10. I have

more years in the trade and the government than the White employee.

If the job announcement was available for this position, it was not

advertised for you to apply, nor was it available to you.

In dismissing the allegations for stating the same claims as a prior

complaint, the agency noted that the dismissed allegations occurred prior

to the signing of a settlement agreement and because the agency determined

that the allegations were within the "purview" of the settlement

agreement, they were therefore considered to be previously decided.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint or a portion of a complaint which fails to state a claim

pursuant to 29 C.F.R. �1614.103 or �1614.106(a) or states the same claim

that is pending before or has been decided by the agency or Commission.

The agency failed to provide a copy of the prior complaint or other

evidence in order for the Commission to determine whether the dismissed

allegations stated the same claims as raised in a prior complaint.

Although the agency provided a copy of a December 1994 settlement

agreement in Agency No. DON 94-68925-001, it cannot be determined from

the settlement agreement itself what appellant alleged in the settled

complaint. Because the agency has not submitted evidence sufficient to

establish that the dismissed allegations were raised in a previously

filed complaint that was the subject of a settlement agreement, the

agency's decision will be vacated.

Further, the Commission finds that some of the dismissed allegations

are vague, overly broad and generalized. For example, the dates

when the alleged discriminatory events occurred are not provided and

although in allegation 6 appellant alleged that he was harassed, the

allegation does not identify the incidents of alleged harassment.<2>

Accordingly, on remand, the agency must clarify allegations that are

vague and generalized and distinguish live allegations from background

information and argument intended to support the allegations. See EEO

Management Directive 110, Chap. 2, III (October 22, 1992); Crespo-Medina

v. Department of the Navy, EEOC Request No. 05940963 (January 13, 1995);

Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993).

It also appears that the agency may have failed to address allegations

raised in appellant's complaints. The Commission has held that failure

to address an allegation in a complaint is tantamount to dismissal by

the agency. See Kapp v. Department of the Navy, EEOC Request No. 05940662

(January 23, 1995).

The Commission notes also that it appears on appeal that appellant

is alleging that the agency breached the settlement agreement and

that notice of the breach was provided to the agency in June 1995.

The agency denied in its response to appellant's appeal that appellant

provided notice of an alleged breach or that the settlement was breached.

Since the issue of a breach of settlement was not considered in the

final agency decision and since it also appears that the alleged breach

concerns another complaint which is not a part of the present record,

the Commission will not address the breach issue in this appeal.

To the extent that appellant is alleging a breach of a settlement

agreement, appellant should pursue this matter with the EEO Director in

accordance with 29 C.F.R. �1614.504(a).<3> The Commission notes that if

the agency determines that appellant is alleging that subsequent acts

of discrimination violated the settlement agreement, such allegations

must be processed as separate complaints under �1614.106 or �1614.204,

as appropriate, rather than as allegations that the settlement agreement

has been violated. See 29 C.F.R. �1614.504(c); Donnelly v. Department

of Energy, EEOC Request No. 05940665 (July 20, 1995); Baul v. Department

of the Navy, EEOC Request No. 05940023 (September 2, 1994).

As a final matter, the Commission notes that on appeal, appellant

identified other incidents of alleged discrimination.<4> To the extent

that appellant may be raising new allegations, he must initiate EEO

counseling regarding any new allegations within 15 days after he receives

this decision, if he wishes to pursue them and he has not already done so.

The agency is advised that if appellant seeks EEO counseling regarding

any new allegations raised on appeal within the above 15-day period,

the date appellant filed the appeal statement in which he raised these

allegations shall be deemed to be the date of the initial EEO contact,

unless appellant previously contacted an EEO Counselor regarding these

matters. If there has been a previous contact, the earlier date would

serve as the EEO counselor contact date. Qatsha v. Department of the

Navy, EEOC Request No. 05970201 (January 16, 1998); Parker v. Department

of the Army, EEOC Request No. 05960025 (August 29, 1996).

Consistent with the foregoing discussion, the final agency decision

is VACATED and the allegations are REMANDED to the agency for further

processing in accordance with applicable regulations and the Order below.

ORDER

The agency is ORDERED to take the following actions:

The agency shall supplement the record with documentation of the prior

complaint in the event that the agency again determines that the dismissed

allegations were the subject of a prior complaint.

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall schedule in writing a meeting between appellant and an

EEO Counselor. The meeting shall provide appellant with the opportunity

to clarify the issues of the combined complaints; to differentiate

between "live" allegations and background allegations; and to identify

the specific agency actions, including their respective dates and the

agency individuals involved in the alleged discrimination.

Thereafter, the agency shall decide whether to process or to dismiss

some or all of the allegations. 29 C.F.R. �1614.106 et seq. If the

agency issues a final decision dismissing any of the allegations, its

final decision must explicitly define all the allegations. The agency

shall not dismiss allegations, de facto, by failing to define or address

allegations.

The agency shall complete all of the above actions within thirty (30)

calendar days of the date this decision becomes final.

A copy of the agency's letter to appellant arranging a meeting with an

EEO Counselor, and a copy of the new final agency decision and/or notice

of processing must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

April 16, 1999

DATE Ronnie Blumenthal, Director

1The agency apparently combined three complaints in the final agency

decision. Although the agency indicated in its final decision that

it was addressing three complaints filed under three agency numbers,

it is unclear which agency number is attached to which complaint since

Agency Nos. 96-68925-009A and 96-68925-009B do not appear on any of

the complaints.

2The Commission notes that in at least one complaint, appellant alleged

that he was subjected to continuing harassment and identified the alleged

discriminatory incidents that occurred.

3In so advising appellant, we make no finding regarding whether notice

of the breach was previously provided to the agency.

4Some of the allegations may be related to appellant's claim of continuing

harassment.