01a02203
08-09-2000
Willie Glover, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Willie Glover v. Department of the Navy
01A02203
August 9, 2000
.
Willie Glover,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02203
Agency No. DON 00-65886-004
DECISION
The complainant timely filed an appeal with this Commission from a final
agency action, dated January 5, 2000, which the agency issued pursuant
to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's
appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's dismissal of
the complainant's complaint that was postmarked November 15, 1999.
In the complaint the complainant alleged that he was discriminated against
based on his race and age and reprisal when on January 10, 1994, he was
assigned a position with reduced responsibilities and denied control of
the E-6 program. The agency dismissed the complaint on the ground that
it stated the same claim that was counseled, investigated, and decided
by the agency in agency complaint number DON 96-65886-002.
A comparison of the agency's definition of the claim in the instant
complaint with the definition of the claims accepted for investigation
in agency complaint number DON 96-65886-002, compels a finding that the
instant complaint does not state the same claim as the prior complaint
even though the complainant relies on many of the same factual allegations
to support each of the complaints.
However, the agency contends on appeal that the complaint should be
dismissed because the complainant did not timely seek EEO counseling.<2>
The complainant first raised the claim at issue in a January 26, 1998
letter to the Commission wherein he alleged that the agency had failed to
comply with the terms of an August 5, 1992 settlement agreement between
the parties. In a prior decision the Commission found that the agency
had not breached the agreement but indicated that, to the extent that the
complainant was alleging that he was discriminatorily denied control of
the E-6 project and a promotional opportunity, he was raising new claims
which should be discussed with an EEO Counselor if he wished to pursue a
complaint and had not already done so. Glover v. Department of the Navy,
EEOC Appeal No. 01984047 (June 22, 1999).
To determine the timeliness of the complainant's EEO Counselor, the
Commission will treat the January 26, 1998 letter as the date that the
complainant first sought to raise the claim at issue in this appeal.
Even using the January 1998 date, the Commission finds that the
complainant did not timely seek counseling within 45 calendar days
of the assignment to a position with reduced responsibilities and the
denial of control of the E-6 program on January 10, 1994. Complainant
has not presented adequate justification for extending the limitation
period beyond forty-five days. Accordingly, the agency's final decision
dismissing complainant's complaint is AFFIRMED. See Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.107(a)(2)).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 9, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant and the agency on:
__________________
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 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.
2 The Commission notes that following the agency's assertion that
complainant untimely contacted an EEO Counselor, complainant responded by
contending that his EEO Counselor contact was timely raised. We therefore
determine that this matter can be properly addressed in the instant
appeal.