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