01a00779
04-28-2000
Charles L. Burgett, )
Complainant, )
)
v. ) Appeal No. 01A00779
) Agency No. 99-4336
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On October 18, 1999, complainant filed a timely appeal with this
Commission from a final agency decision 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> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On September 1, 1999, complainant, an agency employee, filed a formal
complaint, claiming that he was discriminated against on the bases of
race, sex, and reprisal �as a complainant and by representing a fellow
employee� when an agency attorney purportedly took various inappropriate
actions. Complainant specifically claimed that:
(1) the agency attorney sent him correspondence to his post of duty
rather than his postal office box which resulted in unauthorized
disclosures when agency mail room personnel opened the letters to
deliver them;
(2) the letters were not received in a timely fashion and that caused
complainant and the former employee to have insufficient time to prepare
for a deposition;
(3) the agency attorney made misrepresentations to the AJ and as a result,
the AJ cautioned complainant not to obstruct the hearing process;
(4) the agency attorney changed the room location of the deposition
without talking to him in advance; and
(5) Complainant claimed that the latest form of discrimination were two
telephone calls on July 6 and 8, 1999, and a letter dated July 8, 1999,
threatening to file a motion to compel discovery.
The agency issued a final decision dismissing the complaint for failure
to state a claim. The agency noted that all the claims raised in the
complaint �are connected to issues currently pending before the EEOC� and
as such fail to state a claim under our regulations. The agency further
noted that the privacy issue raised by complainant (disclosure of letters
to mail room personnel) is �excluded from the EEO complaint forum�.
A review of the record persuades the Commission that the final agency
decision was appropriate. While the agency dismissed the complaint
for failure to state a claim, the Commission determines that because
this complaint addresses dissatisfaction with the processing of
previously filed complaints, it is more properly analyzed pursuant
to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29 C.F.R. �
1614.107(a)(8)). The record reflects that the instant complaint addresses
a series of purportedly improper actions by an agency attorney regarding
previously filed complaints. Because a fair reading of the complaint
reflects that it encompasses dissatisfaction with the processing of
prior complaints, the Commission determines that the agency's decision
to dismiss the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 28, 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 after it was mailed. I certify
that this 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.