Alexander J. Qatsha, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01985805 (E.E.O.C. Feb. 1, 2000)

01985805

02-01-2000

Alexander J. Qatsha, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Alexander J. Qatsha v. Department of the Navy

01985805

February 1, 2000

Alexander J. Qatsha, )

Complainant, )

)

v. ) Appeal No. 01985805

) Agency No. 98-62383-004

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Complainant filed the instant appeal from the agency's decision dated

June 24, 1998 dismissing complainant's complaint.<1>

The agency defined complainant's complaint as comprised of three

claims: relating to an award (claim 1); the dissemination of medical

documentation (claim 2); and the flying back of Former Supervisor A to

obtain information about a RIF (claim 3).

Claim 1

The agency dismissed claim 1 for untimely EEO Counselor contact.

The agency defined claim 1 as concerning complainant's request for a

Meritorious Civilian Service Award dated January 8, 1997 (the agency

apparently found that the request was denied on June 30, 1997).

On appeal, complainant argues that the award at issue in claim 1 was

the Special Act Award, awarded to Person A effective December 8, 1997

in the amount of $1,500.00. A review of the EEO complaint and the EEO

Counselor's report shows that the agency has misdefined claim 1 by

referencing the wrong award. The Commission finds that complainant

has correctly defined claim 1 as concerning the Special Act Award

purportedly given to Person A effective December 8, 1997. Because the

agency misdefined claim 1 and did not consider whether the December 8,

1997 award was timely raised with an EEO Counselor, we shall vacate

the agency's decision dismissing claim 1. We do not address in this

decision whether claim 1, when correctly defined as concerning the

Special Act Award purportedly given to Person A effective December 8,

1997, was timely raised with an EEO Counselor.

Claim 2

The agency dismissed claim 2 (improper dissemination of medical

documentation) on the grounds that complainant did not raise the

matter with an EEO Counselor. The agency found that complainant told

the EEO Counselor to disregard this issue. The Commission finds that

complainant apparently received some EEO counseling on claim 2, as it is

referenced in the EEO Counselor's report. Furthermore, although the EEO

Specialist (the title of the person signing the report and apparently

also referred to as the EEO Counselor) stated that complainant informed

the EEO Counselor that this issue would not be included in the complaint,

there is no written form signed by complainant which would constitute a

withdrawal of this issue. Complainant argues that the EEO Specialist

dissuaded him from raising this issue. The Commission finds that the

record is sufficient to support a finding that complainant did receive

EEO counseling on claim 2. Therefore, we find that claim 2 was improperly

dismissed for failure to raise this matter with an EEO Counselor.

Claim 3

The Commission finds that the agency properly dismissed claim 3 for

failure to state a claim. Complainant has failed to show how he was

aggrieved in this claim. Furthermore, although complainant indicates that

his complaint is a complaint of harassment, we find that the complaint

as a whole is insufficient to state a claim of harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).

Other Claims

Complainant argues that the agency has ignored other claims in

complainant's complaint. The Commission agrees. For instance, the agency

ignored complainant's claim that the agency hid the matter "that they did

not have authorization for the transfer of function . . ." Furthermore,

in the complaint, complainant referenced a breach of settlement claim.

However, complainant may be attempting to raise this as a non-breach

claim. The claims which are apparently in the complaint but which were

ignored by the agency in its decision are unclear. Therefore, we shall

remand the complaint so the agency may contact complainant to clarify

the claims in the complaint apart from claims 1 - 3.

The agency's decision dismissing claim 1 is VACATED. Claim 1 is

REMANDED, as redefined in this decision, to the agency for further

processing in accordance with this decision and applicable regulations.

The agency's decision dismissing claim 2 and the undefined claims in the

complaint is REVERSED. We REMAND claim 2 and the undefined claims in the

complaint to the agency for further processing in accordance with this

decision and applicable regulations. The agency's decision dismissing

claim 3 is AFFIRMED.

ORDER

Within 15 days of the date that this decision becomes final, the agency

shall contact complainant to clarify the claims in the complaint not

addressed in the agency's June 24, 1998 decision. Within 60 days of

the date this decision becomes final, the agency shall either notify

complainant pursuant to the regulation set forth at 64 Fed. Reg 37,644,

37,656 (1999) (to be codified as 29 C.F.R. �1614.107(b)) that a portion

of the complaint is dismissed or shall issue a letter to complainant

accepting the dismissed claims. All remanded discrimination claims

should be combined and, unless subject to dismissal pursuant to

�1614.107(b), should be processed together pursuant to the regulation

set forth at 64 Fed. Reg 37,644, 37,656 - 57 (1999) (to be codified as 29

C.F.R. �1614.108). A copy of the agency's letter notifying complainant

of its determination to dismiss or accept the remanded claims must be

sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 1, 2000

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.