01A40521
02-10-2004
Burton R. McNeal, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Burton R. McNeal v. Department of Homeland Security
01A40521
February 10, 2004
.
Burton R. McNeal,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A40521
Agency No. I-03-E094
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, issued on September 30, 2003, pertaining to his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant contacted the EEO office claiming that he was subjected to
reprisal when: in April 2003, the agency denied his request for travel
costs associated with attending an administrative hearing regarding
his EEO complaints. According to complainant, the Regional Operations
Coordinator told him the authorization was being denied because he was
"suing the government." Informal efforts to resolve complainant's
concerns were unsuccessful. On June 12, 2003, complainant filed a
formal complaint.
The agency dismissed the complaint for alleging dissatisfaction with
the processing of a previously filed complaint. The agency found that
the complaint stemmed from allegedly improper conduct by the agency
with respect to a hearing held on his prior EEO complaints (Case
Nos. I-93-6292, I-95-6779, I-97-0245, I-98-E020, and I-99-E045).
On appeal, complainant reiterates that the denial of his travel expenses
was taken in reprisal for filing his earlier EEO complaints. Complainant
argues that the expenditures for others to attend the same hearing were
authorized and that he was treated differently. Complainant contends
that he tried to raise the matter with the AJ conducting the hearing,
but to no avail. Complainant asserts that he therefore had "no choice
but to timely initiate a new and separate complaint of reprisal . . . . "
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the EEO process must be raised within the underlying complaint,
not a new complaint. A complainant must raise any dissatisfaction
with the processing of his complaint before the Administrative Judge
issues a decision on that complaint, the agency takes final action on
the complaint, ro either the Administrative judge or the agency dismiss
the complaint. No concerns regarding improper processing raised after
a decision will be accepted. See EEOC - Management Directive 110 (as
revised Nov. 9, 1999) 5-23, 5-25 to 5-26. Here, complainant contends that
he was discriminated against when management denied his request for the
travel costs associated with attending an EEO hearing. The Commission
finds that the complaint is an improper �spin-off� of complainant's
prior complaints and that it was properly dismissed by the agency.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2004
__________________
Date