01980572
02-10-2000
Albert E. Mahan, Jr., Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Albert E.Mahan,Jr. v. Department of Agriculture
01980572
February 10, 2000
Albert E. Mahan, Jr., )
Complainant, )
)
v. ) Appeal No. 01980572
) Agency No. LSM-97-011
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 20,1997, complainant filed an appeal with this Commission from
a final agency decision (FAD) on his June 10,1997 complaint of unlawful
employment discrimination<1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of his sex and age when:
On March 10, 1997, he was given a memorandum stating that his
performance was unacceptable.
On January 26, 1997, he learned that although he applied, he was not
selected for the position of GS-1801-12 Reclamation Review Specialist.
In June 1993, he was removed from his position as a GS-1801-12
Reclamation Specialist for medical reasons.
The agency accepted claims 1 and 2 for processing and dismissed claim 3
on the grounds that complainant raised an identical claim in a previously
filed complaint, Complaint No. LSM 94-004 and that the previously filed
complaint was resolved pursuant to a settlement agreement on November
24, 1993. The agency stated that on November 18, 1994, complainant
submitted a request to reopen Complaint No. LSM 94-004, alleging that
the terms of the agreement had been breached. On December 13, 1994,
the agency denied that request, stating that terms of the agreement
were not breached and gave complainant his appeal rights if he was
dissatisfied with the decision. The record indicates that complainant
did not appeal the agency decision on Complaint No. LSM 94-004..
The Commission finds that the agency's decision dated September 30, 1997,
dismissing a portion of complainant's complaint (claim 3) on the grounds
that the dismissed portion of the complaint states the same claim as
raised by the complainant in another EEO complaint is proper pursuant to
the regulation set forth at 64 Fed. Reg.37,644, 37,656 (to be codified
and herein after as 29 C.F.R. � 1614.107(1)). Although direct appeals
of decisions partially dismissing a complaint are no longer permissible
under the regulations revised on November 9, 1999, the remainder
(accepted portion) of the complaint, comprised of claims 1 and 2, was
the subject of a decision on their merits by the agency. Therefore, we
shall consider the instant appeal because a determination on the merits
of the remaining portion of the complaint has been made.
After a review of the record the Commission finds that the dismissed
portion (claim 3) of the instant complaint, and an accepted portion of
the prior complaint filed by complainant, (LSM 94-004), state the same
claim. Specifically, both claim 3 and the matter raised in Complaint
No. LSM 94-004 address the issue that in June 1993, complainant was
removed from his position as GS-1801-12 reclamation Specialist for
medical reasons. Accordingly, the final agency decision 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:
February 10, 2000 __________________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION 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.