01985059
12-03-1999
Timothy Woodington, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Timothy Woodington v. Department of the Navy
01985059
December 3, 1999
Timothy Woodington, )
Complainant, )
)
v. ) Appeal No. 01985059
) Agency No. DON-96-00187-023
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On June 12, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated June 12, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission accepts complainant's
appeal in accordance with EEOC Order No. 960, as amended. <1>
Complainant filed a formal complaint (Agency No. DON-96-00187-023) on June
21, 1996, raising three claims. In its first FAD, the agency accepted
two claims and dismissed claim one on the grounds that complainant failed
to raise the matter with an EEO Counselor. In claim one, complainant
alleged that he was subjected to discrimination on the bases of age (DOB:
8/8/52), color (dark tan), and in reprisal for prior EEO activity when
he was not allowed to sit in as a paid Supervisory Planner and Estimator
on 31 August 1995, 31 October 1995, 31 December 1995, 28 February 1996,
and 30 April 1996. Complainant appealed. In EEOC Appeal No. 01971473
(May 6, 1998), the Commission remanded claim one to the agency for
further processing.
However, while claim one was pending on appeal, complainant contacted
an EEO Counselor and filed a separate formal complaint on claim one
(Agency No. DON 97-00187-016). The agency accepted claim one, conducted
an investigation, and complainant requested a hearing on claim one.
The Administrative Judge consolidated DON 97-00187-016 with another
unrelated complaint (Agency No. DON 97-00187-003) by complainant for
hearing and both matters were settled by agreement on January 23,
1998.
When the agency received the remanded claim one in DON-96-00187-023,
the agency issued a new decision dismissing claim one on the grounds
that it stated the same matter as previously settled in DON 97-00187-016.
Complainant filed the present appeal from this dismissal.
Initially, we note that under the revised regulations, where the agency
believes that some but not all claims in a complaint should be dismissed,
the agency shall notify the complainant in writing of its determination,
the rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file. 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified as 29 C.F.R. �
1614.107(b)). A determination not to investigate certain claims is
reviewable by an Administrative Judge (AJ) if a hearing is requested
on the remainder of the complaint, but is not appealable until final
action is taken on the remainder of the complaint. Upon review of the
present case, however, we find that remand of the dismissed claim one
for consolidation with the remainder of the complaint is unnecessary
in view of the disposition of the issue raised in claim one through the
disposition of Agency No. DON 97-00187-016.
Volume 64 Fed. Regulation 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency
shall dismiss a complaint or a portion of a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission.
The record clearly indicates that complainant filed a separate, formal
complaint on claim one, which culminated in the January 23, 1998
settlement agreement. Accordingly, the agency's dismissal of claim
one for stating the same claim that was raised in DON-97-00187-016 is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 3, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.