01993401
11-01-2000
Thomas P. Spahos, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Thomas P. Spahos v. Department of the Navy
01993401
November 1, 2000
.
Thomas P. Spahos,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01993401
Agency No. 99-67001-005
DECISION
Complainant filed an appeal with this Commission from a decision of the
agency concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq.<1> The decision was
issued on March 16, 1999. The appeal was postmarked March 22, 1999.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds that it states the same claim that is
pending before or has been decided by the agency or the Commission.
BACKGROUND
Complainant initiated contact with an EEO Counselor on June 24, 1998.
On February 23, 1999, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his age
(60), physical disability (high blood pressure, ulcers, diabetes),
and in reprisal for his previous EEO activity when:
1. In June 1998, he was denied a cash award that several other employees
in his work area received.
2. In April 1998, management deliberately sabotaged his work.
3. On June 19, 1998, he was issued a less than fully successful
performance evaluation.
4. Management forced him to retire or be terminated.
5. His request for information under the Privacy Act was denied.
6. On June 12, 1998, management made derogatory comments toward him
during a meeting.
In its decision, the agency dismissed the complaint on the grounds that
it states the same claim that is pending before or has been decided by
the agency or the Commission. The agency determined that each of the
claims was raised in a previous complaint filed by complainant, Agency
No. 98-67001-018, that is pending hearing before an EEOC Administrative
Judge. The agency stated that complainant raised these issues during
the investigation of the previous complaint.
On appeal, complainant contends that he lost a $25,000 bonus that he was
entitled to because he was coerced to retire earlier than he had planned.
Complainant argues that agency officials told him that he would be fired
if he failed to drop his EEO complaints.
In response, the agency asserts with regard to claim 1 that complainant
raised the denial of a cash award during the investigation of the first
complaint. The agency states that complainant also made a claim for
relief with regard to the first claim. As for the second claim, the
agency states that although the April 1998 time period is subsequent
to the time period covered by the first complaint, complainant placed
evidence about the April 1998 sabotage of his work into the record and
he raised this matter during the investigation of the first complaint.
With regard to claim 3, the agency asserts that the performance
appraisal rating was never made official. The agency states the this
claim should have been dismissed for mootness or alleging a proposed
personnel action. In terms of claims 4 and 5, the agency asserts
that complainant specifically raised both of these claims during the
investigation of his first complaint, and that he requested relief for
these claims as part of his first complaint. With regard to claim 6, the
agency notes that although this claim was not specifically raised during
the investigation of the previous complaint, it is part of a continuing
violation claim that complainant has articulated concerning management
actions in the form of harassment, sabotage, and undermining him in
his position. The agency reasons that this claim was brought to the
attention of the Office of Complaint Investigation (OCI) investigator.
The agency argues in the alternative that this claim is so similar to
the claims in the first complaint that it has been consolidated with the
first complaint through complainant's testimony to the OCI investigator.
The agency notes that such testimony duplicated the first paragraph of
the second complaint. In conclusion, the agency asserts that through
complainant's statements and documents provided to the OCI investigator,
and the relief requested, all of the claims of his second complaint are
already pending before the agency through the first complaint.
ANALYSIS AND FINDINGS
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.
It has long been established that �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. United States Postal Service, EEOC Appeal No. 01955890
(April 5, 1996).
The agency maintains that the instant complaint states the same claim
as the prior complaint since complainant raised claims from the instant
complaint during the investigation of the previous complaint. We find
that the agency has not sufficiently supported its position. Upon review
of the record, we note that the record does not contain a copy of the
prior complaint that is referenced by the agency. Moreover, the agency
has not demonstrated that the claims raised in the instant complaint
will be addressed in the matter pending before an EEOC AJ. The mere
reference by complainant during the investigation of the first complaint
to issues that were subsequently raised in the instant complaint does not
establish that these matters were incorporated into the first complaint
as distinct claims to be adjudicated as part of the first complaint.
Therefore, the agency's dismissal of the instant complaint on the grounds
that it states the same claim as that pending before the Commission was
improper and is REVERSED.<2> Accordingly, this complaint is REMANDED
to the agency for further processing pursuant to the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
November 1, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that the agency asserts in its response that claim 3 should have
been dismissed on the grounds of mootness or that it relates to a proposed
action. It has not been conclusively established that the alleged rating
issued to complainant was withdrawn or otherwise not made official.
Absent conclusive evidence, we find that the claim can not be considered
moot and also that it does not involve a proposed personnel action.