01991129
03-01-2000
Bobby E. Danzie, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Bobby E. Danzie v. Department of the Army
01991129
March 1, 2000
Bobby E. Danzie, )
Complainant, )
)
v. ) Appeal No. 01991129
) Agency No. BXJCF097
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On November 17, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 16, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
color (Black), sex (male), and in reprisal for prior EEO activity when:
Complainant was improperly advised by an EEO Specialist to withdraw
an EEO complaint, and that same individual, in the capacity of Acting
EEO Officer, wrongfully dismissed the new EEO complaint;
Complainant was improperly advised by the EEO Specialist to sign a
withdrawal of his complaint, which excluded complainant from receiving
consideration from management for future opportunities, rather than
being able to have a Negotiated Settlement Agreement;
Complainant's formal complaint filed on June 17, 1997, was dismissed
by the Acting EEO Officer because she was somehow influenced to make
that decision by the current and former Major Generals commanding the
21st TAACOM; and
The former Commander failed to take action on complainant's complaint
after meeting with complainant on December 6, 1996.
In its FAD, the agency addressed two separate formal complaints filed on
March 28, 1998, and July 25, 1998, both of which were being dismissed
in the FAD. The agency dismissed claim (1) for failure to state a
claim, finding that the claim was a "spin-off" complaint concerning
the processing of her prior claims. The agency dismissed the remaining
claims for failure to cooperate. Specifically, the agency found that it
requested information from complainant on August 18, 1998, and informed
him that he must respond within fifteen (15) days. The agency further
found that complainant received the notice on August 26, 1998, but
never responded.
The record includes a copy of the agency's request for information,
dated August 18, 1998. Therein, the agency requests that complainant
explain what harm he suffered other than from the processing of his
prior complaints. Further, the request asks that complainant reply
within 15 days.
The record also contains a Counselor's Report, dated July 31, 1998.
Therein, complainant states that he met with the Commanders of TAACOM
regarding the incidents from his prior complaints, but they took not
action to remedy the situation. Complainant also argues that his
withdrawal of the 1995 complaint was not voluntary because the EEO
Specialist requested it without suggesting that complainant negotiate a
settlement agreement. Complainant described his interaction with the
EEO Specialist as "superior" vs. "subordinate," where complainant was
told what to do.
The EEO Specialist, in an interview with the Counselor, stated that when
she took over the EEO office, the 1995 complaint was filed already,
but had not been processed due to a back-log. She contends that
upon informing complainant that his complaint was being processed,
complainant told her that he had received the temporary appointment for
which he filed the 1995 complaint. According to the EEO Specialist,
she asked complainant what he wished to do with the 1995 complaint,
and he voiced his wish to withdraw.
The record also includes a copy of complainant's withdrawal, dated
July 26, 1995. Therein, complainant stated that "the condition which
necessitated this complaint has been alleviated. The relief sought in
my grievance is in place at present."
EEOC Regulations allow the dismissal of complaints in which the agency
requests, in writing, further information from complainant, the request
includes a notice of proposed dismissal, and complainant fails to respond
to the request within 15 days. See 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)).
The regulation further provides that, instead of dismissing for failure
to cooperate, the complaint may be adjudicated if sufficient information
for that purpose is available. Id.
In the present case, we find that the dismissal of claims (2), (3), and
(4) for failure to cooperate was improper. Although the agency asked
that complainant reply to its request within 15 days, it did not inform
him that failure to reply could result in dismissal.
Claims alleging dissatisfaction with the processing of a prior complaint
must be dismissed. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
as 29 C.F.R. � 107(a)(8)). Dissatisfaction with the EEO process must be
raised within the underlying complaint, not a new complaint. See EEOC -
Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26.
The Commission finds that claims (3) and (4) concern the processing of
prior complaints. Additionally, claim (1) also must be dismissed to the
extent that it alleges harm from the improper dismissal of a prior claim.
Therefore, claims (3) and (4), and part of claim (1) must be dismissed
pursuant to 29 C.F.R. � 107(a)(8).
Claims (1) and (2), concern the voluntariness of complainant's withdrawal
of his 1995 complaint. In the present case, the Commission finds that his
withdrawal was voluntary. Complainant did not challenge the withdrawal
until three years after it was made. Further, complainant stated in
his withdrawal that he had obtained the relief sought in the 1995 case.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED for the reasons set
forth herein.
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:
March 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.