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.