Albert Morton, Appellant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01981609 (E.E.O.C. Jan. 21, 1999)

01981609

01-21-1999

Albert Morton, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Albert Morton v. Department of Commerce

01981609

January 21, 1999

Albert Morton, )

Appellant, )

)

v. ) Appeal No. 01981609

) Agency No. 97-51-0207-01

)

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

)

DECISION

The Commission finds that the agency erred in its November 21, 1997

decision which dismissed two of the allegations of appellant's complaint,

on the grounds that they raised the same claims that are pending before

or have been decided by the agency or the Commission.

In his complaint, appellant alleged, inter alia, that he had been

discriminated against on the bases of race (African American),

age(5/18/34), physical disability (certain environmental conditions

affect speech) and reprisal for prior EEO activity when: (2) a position

reclassification resulted in a promotion for the white Audiovisual

Specialist, but was detrimental to him; and, (4) he is excluded from

meetings and decision making and receives no training or career-enhancing

assignments. The agency issued a final decision dismissing allegations

(2) and those incidents in allegation (4) occurring prior to March 20,

1996 on the basis that said issues had been raised by appellant in prior

EEO complaints. The agency further found that appellant had also filed

a civil action regarding allegation (2).

A review of the record shows that even though the agency contends that

the dismissed allegations have been previously raised in other EEO

complaints and also as part of a civil action, no independent evidence

has been provided on appeal to support said position. Without such

supporting documentation in the record, the Commission is unable to

make an independent determination concerning whether the allegations

were previously raised. Accordingly, the agency erred by dismissing

allegations (2) and (4). The final agency decision is hereby VACATED and

allegations (2) and the dismissed portion of (4) are REMANDED for further

processing in accordance with this decision and applicable regulations.

ORDER

The agency is ORDERED to conduct a supplemental investigation in order to

provide documentation regarding any prior complaints filed by appellant

which concern allegations (2) and (4). Within sixty (60) days of the date

this decision becomes final, the agency shall either accept allegation

(2) and the dismissed part of allegation (4) for processing or issue a

new final decision dismissing allegation (2) and/ or part of allegation

(4). The final decision or letter accepting allegations (2) and (4)

shall be submitted to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

January 21, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations