Rev. Cleveland B. Sparrow, Sr., Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120112458 (E.E.O.C. Dec. 8, 2011)

0120112458

12-08-2011

Rev. Cleveland B. Sparrow, Sr., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.




Rev. Cleveland B. Sparrow, Sr.,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120112458

Agency No. 10-00027-01774

DECISION

On January 11, 2011, Complainant filed a timely appeal with this

Commission from the Agency's decision dated January 13, 2011, dismissing

his complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §

621 et seq.

Complainant was a Computer Systems Analyst at the Agency’s

Navy Accounting and Finance Center. His duty station was in

Shirlington/Arlington, Virginia. He resigned effective February 14, 1977.

On June 9, 2011, he filed a formal EEO complaint alleging that the Agency

subjected him to discrimination on the bases of race (African-American),

color (black), national origin (USA), religion (Christian), disability,

age (currently 74), and reprisal for EEO activity when:

1. during his employment with the Agency, he was given unfavorable

performance ratings, his position was changed to a lower classification,

he was transferred to a dead-end position, and he was denied promotional

opportunities;

2. the Agency did not comply with the Commission’s orders in EEOC

Appeal No. B10778108 and 05800022;

3. the Agency failed to comply with his settlement agreement dated

November 26, 1982;

4. on or about November 26, 1982, the Agency did not comply with the

Notification of Personnel Action (SF-50) dated February 25, 1977,

canceling his removal with consequent promotions to GS-13;

5. his EEO complaints were improperly denied in final Agency decisions;

6. from September 9, 2009 through December 18, 2009, the Agency failed to

provide him copies of his Wage and Tax statement -- W2s from 1968 to 2009;

7. on or about March 1, 2010, the Agency did not provide him a copy of

his official personnel file (OPF); and

8. because of an ongoing medical situation which began when he was

employed by the Agency, Medicare requested that the Office of Workers’

Compensation Programs (OWCP) reimburse payments it made.1

The Agency dismissed the entire complaint. It dismissed claims 3, 4, 6,

and 8 for stating the same claim that has been decided by the Agency or

Commission, i.e., they were previously adjudicated by the Commission.

It dismissed claim 7 for failure to state a claim because Complainant is

no longer an employee. No specific reasons were given for the dismissal

of claims 1, 2 and 5.

We find that claims 2, 3, 4, 6, and 7 have been previously adjudicated

and resolved against Complainant. See Sparrow v. Reynolds, 646

F.Supp. 834 (D.C. 1986); Sparrow v. Navy, EEOC Appeal No. 01870404

(Sep. 14, 1987); and Sparrow v. Department of Defense (Defense Finance &

Accounting Service, EEOC Appeal No. 0120083158 (Dec. 19, 2008); Sparrow

v. Commissioner of Internal Revenue, 949 F.2d 434 (D.C. Cir. 1991).

The Court sanctioned Complainant for repeatedly relitigating issues

by requiring him to seek leave of the court before filing any new

civil action, and the Commission also found that Complainant abused

the administrative process by repeatedly relitigating claims. Id.

While claims 6 and 7 have dates which occurred after the above litigation,

these claims are nothing more than an attempt to relitigate older claims.

Claims 6 and 7 actually regard Complainant’s attempt to get information

showing he should not have been separated, and that back pay from the

settlement agreement should not have been identified as taxable income.

The taxable income issue was resolved against Complainant in Sparrow

v. Commissioner of Internal Revenue, 949 F.2d 434 (D.C. Cir. 1991).

At least portions of claim 1 were previously adjudicated and resolved

against Complainant in the above cases. To the extent they were not,

they are closed by the November 26, 1982, settlement agreement. Therein,

Complainant agreed to release the Agency from any liability arising

out of his employment with the Agency. In 1984, the Federal District

Court for the District of Columbia upheld the settlement agreement.

This was affirmed by the United States Court of Appeals for the District

of Columbia in 1985. See EEOC Appeal Nos. 01870404 and 0120083158.

Claims 5 and 8 fail to state a claim. 29 C.F.R. § 1614.107(a)(1). They

constitute a collateral attack on the EEOC, OWCP and Medicare processes.

When Complainant believes a final Agency decision is wrongly decided, he

should exercise his appeal rights, as he has done in the past, not file

a separate EEO complaint challenging the decisions. Likewise, he should

raise his concerns with medical bill payments with those involved in the

payments, i.e., OWCP and Medicare, not the Agency. Kleinman v. United

States Postal Service, EEOC Request No. 05940585 (September 22, 1994).

The Agency’s dismissal of Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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

77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

December 8, 2011

__________________

Date

1 Complainant listed 10 claims, but some were duplicative. The Agency’s

definition of the complaint omitted some claims, which are included here.

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0120112458

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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