David K. Smith, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 3, 1999
01982032 (E.E.O.C. Nov. 3, 1999)

01982032

11-03-1999

David K. Smith, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


David K. Smith v. Department of the Navy

01982032

November 3, 1999

David K. Smith, )

Appellant, )

)

v. ) Appeal No. 01982032

) Agency No. DON-98-00367-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

The Commission finds that the agency's December 16, 1997 decision

dismissing a portion of appellant's complaint on the basis that it

raised matters not brought to the attention of the EEO counselor, is

proper pursuant to the provisions of 29 C.F.R. �1614.107(b).

The record shows that appellant sought EEO counseling on February 25,

1997, alleging that he had been discriminated against on the bases

of religion (none specified) and disability (none specified) when:

(1) in 1988, he was discriminated against due to his disability; (2)

his use of sick or annual leave to cover periods of illness and use

of religious compensatory time was held against him; (3) there is no

meaningful program for disabled veterans that can show steady progress

in the area of affirmative action; (4) he was highly qualified in 1981

for a GS-13 supervisory computer specialist job; (5) he was qualified

for a supervisory position in 902 and was not selected; (6) he was denied

awards; and, (7) he was denied advancement opportunities when a coworker

was preselected for a temporary GS-0343-13 Supervisory Program Analyst

position in code 902 and placed as his first line supervisor.

The final interview concerning appellant's informal complaint was held

on June 6, 1997. On June 20, 1997, appellant filed his formal complaint

of discrimination alleging that he had been discriminated against on the

basis of disability (30% disabled veteran, Crohns disease, Cataracts

and Glaucoma) when: (a) on February 4, 1996, he was not selected for

temporary promotion to a GS-343-13 position; (b) on December 8, 1996,

he was not selected for temporary promotion to a GS-343-13 position;

(c) he was harassed about the use of religious compensatory time; (d) he

was harassed about the use of sick leave and annual leave for illness;

(e) he was denied an outstanding performance appraisal for the 1996

rating period; and, (f) he was denied a performance award for the 1996

rating period.

By document dated October 10, 1997, appellant provided further

clarification to his June 20, 1997 complaint. Appellant added several

allegations "to supplement" his formal complaint. Appellant alleged

that he had been discriminated against on the bases of religion and

disability when: (4)(a) in August 1997, the Workforce Diversity Division

did not provide information appellant requested under the Freedom of

Information Act regarding an allegation of physical abuse against him

by KC; (4)(b) he failed to obtain answers to his questions as to why

JOA Vol. 97 No. T-76, GS-13, dated August 14, 1997, was removed from the

bulletin board; (4)(c) JOA Vol. 97 No. T-76, GS-13 was filled by a CMDP

certified candidate; (4)(d) he failed to get action on his EEO complaint

and sought congressional intervention; and, (4)(e) on September 24,

1997, he was informed by cc:mail that misstatements were made by the

Commanding Officer of FMSO to a congressman's office noting that the

inaction on his EEO complaint was due to appellant.

The agency issued a final decision accepting allegations (a) - (f) of

appellant's June 20, 1997 formal complaint for investigation. However,

allegations 4(a) - 4(e) of appellant's October 10, 1997 clarification to

his original June 20, 1997 complaint were dismissed by the agency on the

basis that these allegations had not been brought to the attention of

the EEO counselor during the inquiry of appellant's informal complaint

of discrimination.

On appeal, appellant contends that the dismissed allegations are like or

related to the issues he brought to the attention of the EEO counselor

during counseling.

EEOC Regulation 29 C.F.R.�1614.107(b) provides that an agency shall

dismiss a complaint or portion of a complaint that raises a matter that

has not been brought to the attention of the EEO counselor and is not

like or related to the matter that was brought to the EEO counselor's

attention. Appellant filed a formal EEO complaint on June 20, 1997.

By document dated October 10, 1997, appellant clarified his complaint

by adding several allegations: allegations (4)(a) - (4)(e). The record

shows that said allegations were not raised with the EEO counselor

during the informal inquiry. We also find that allegations (4)(a) - (4)

(e) are not related to the counseled issues. Moreover, by appellant's

statements on appeal, we are persuaded that the incidents raised in his

October 10, 1997 clarification constitute a complaint and not merely

background information to supplement his prior allegations.

Accordingly, the agency's decision dismissing allegations (4)(a) -

(4)(e), raised by appellant in his October 10, 1997 clarification

document, is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

11/03/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations