01a21329
08-07-2003
Stephen J. Vessella, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Stephen J. Vessella v. Department of Defense
01A21329
August 7, 2003
.
Stephen J. Vessella,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A21329
Agency No. XL-99-012R
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated December 6, 2001, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reflects that during the relevant time, complainant was
employed as a Contract Price Analyst/Contract Performance Measurement
Monitor for DCMC Textron Systems in Wilmington, Massachusetts.
In the instant formal complaint, filed on January 21, 1999, complainant
alleged that he was the victim of unlawful employment discrimination on
the bases of race (Caucasian), national origin (Italian-American), sex
(male), religion (Catholic), and age (date of birth: 1-4-1955) when:
Complainant was subjected to ethnic slurs from co-workers during lunchtime
card games;
He was continuously referred to as "Vinny" by fellow employees despite
his repeated requests that they call him by his given name;
On November 12, 1998, ethnic slurs and other derogatory comments were
written in reference to him on the office dry-board by his co-workers; and
He was not selected for a number of GS-13 positions he applied for
despite his meeting the job qualifications.
On March 24, 1999, the agency issued a final decision on the instant
complaint. Therein, the agency focused exclusively on a single incident
cited by complainant, that occurred on November 12, 1998, and stated
that this one event was insufficient to rise to the level of cognizable
national origin harassment. The agency dismissed the complaint for
failure to state a claim.
On November 1, 1999, complainant filed another EEO complaint, identified
as Complaint No. XL-00-004. Therein, complainant claimed that he was
the victim of unlawful employment discrimination on the bases of race,
color, religion, national origin, age, sex, and in reprisal for �former
supervisor's action from employment at Textron to present / 11 - 121 -
98 Agency Case XL-99-012 [the instant complaint].� Complainant claimed
that he was referred to as a �Ginny, Warp and Dago� on more than one
occasion; that he was constantly stereotyped with the name �Vinny�;
and that on November 12, 1998, derogatory comments were written on a
dryboard, such as �Who's the boss Vinny,� �Tony Danza� and �Ginny, Wop,
Dago.� Complainant also appended to this complaint a list of jobs for
which he had either been found qualified and was not selected, or did
not make the cut-off score for referral.
On November 22, 1999, complainant and the agency settled Complaint
No. XL-00-004. The settlement agreement stated, in pertinent part,
that complainant agreed the �waive his right to pursue administrative
or judicial action in any forum concerning the matters raised in
this complaint and that they will not be made the subject of future
litigation.�
After complainant filed an appeal from the agency's March 24, 1999 final
decision on the instant complaint, the Commission reversed the agency's
dismissal for failure to state a claim. Specifically, the Commission
determined that complainant through the four claims identified above,
complainant alleged a pattern of harassment that occurred throughout
his time at DCMC Textron. The instant complaint was remanded to the
agency for further processing. Vessella v. Defense Logistics Agency,
EEOC Appeal No. 01994117 (April 19, 2001).
Following the Commission remand of the instant complaint, the agency
investigated the four claims identified above. On July 10, 2001, the
agency sent a letter to the Commission, regarding claim 4 (non-selection
for jobs). Therein, the agency noted that the jobs identified therein
were the same jobs identified in Complaint No. XL-00-0004.
On December 6, 2001, the agency issued a final decision that is the
subject of the instant appeal. In its final decision, the agency did
not address the matters relating to ethnic slurs/derogatory comments
that were encompassed by claims (1) - (3) as identified in its final
decision of March 24, 1999. Instead, the agency focused on the job-non
selection matter, and expanded it into seven separate job actions: the
first six related to positions for which complainant was non-selected or
to which he had not been referred. The seventh related to complainant's
assertion that he had been denied numerous positions in other Federal
agencies. The agency dismissed the first six claims on the grounds
of untimely EEO Counselor contact. The agency dismissed the seventh
claim (regarding other Federal agencies) for failure to state a claim.
Finally, the agency determined that all of these non-selections were
settled upon the execution of the November 22, 1999 settlement agreement,
in resolution of Complaint No. XL-00-004.
On appeal, complainant argues that the agency improperly dismissed the
instant complaint. In response, the agency argues that the non-selection
claims, as well as complainant's claims regarding the ethnic slurs and
derogatory comments were resolved in the November 22, 1999 settlement
agreement, because they are based on the same underlying facts as the
settled complaint: Complaint No. WL-00-004.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The record in this case contains a copy of a settlement agreement,
resolving Complaint No. XL-00-004, as well as a copy of Complaint
No. XL-00-004. Upon a thorough review of the record, the Commission
determines that all of the claims raised in the instant complaint,
relating to ethnic/derogatory slurs and job non-selections, are
addressed in the settlement agreement referenced above. We determine
that the instant complaint has been decided by the agency and is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency's decision to dismiss the instant complaint was proper and
is AFFIRMED.
Because we affirm the dismissal of the instant complaint for the reason
stated herein, we find it unnecessary to address the agency's alternative
dismissal grounds.
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
August 7, 2003
__________________
Date