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.