01990153
10-28-1999
Donald A. Colbert, Jr., Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Donald A. Colbert, Jr. v. Department of the Navy
01990153
October 28, 1999
Donald A. Colbert, Jr., )
Appellant, )
)
v. ) Appeal No. 01990153
) Agency No. 98-00207-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 15, 1998, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision accepted allegation 2a (denial of training
allegedly based on race) for investigation. The decision dismissed
three reprisal allegations: allegations 4a, 4b, and 4c. Specifically,
the agency dismissed allegations 4a and 4c for failure to state a claim;
allegations 4b for failure to bring the matter to the attention of an
EEO Counselor; and 4c on the alternative grounds of failure to bring
the matter to the attention of an EEO counselor.
The record reflects that the appellant discussed the matters raised in
allegations 4a, 4b, and 4c with two EEO counselors during the summer
of 1998. Thereafter, the appellant included the matters raised in
allegations 4a, 4b, and 4c in a second formal complaint (Complaint
No. 98-00207-006). The agency accepted and investigated those matters,
as examples of alleged harassment based on race and retaliation.
The appellant has requested a hearing on the second complaint.
After a review of the record, the Commission determines that allegations
4a, 4b, and 4c are more properly analyzed in terms of whether the
matters contained therein were raised in a complaint that the agency
has accepted for investigation. Because the record reflects that the
agency has investigated the matters raised in allegations 4a, 4b, and
4c, as part of the retaliation/hostile work environment claim raised in
Complaint No. 98-00207-006, the Commission finds that the agency need not
investigate allegations 4a, 4b, and 4c for a second time as part of the
instant complaint. Accordingly, the Commission AFFIRMS the dismissal of
allegations 4a, 4b, and 4c pursuant to 29 C.F.R. �1614.107(a), on the
grounds that they are part of the same claim which the agency accepted
and investigated in agency Complaint No. 98-00207-006.
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. �1614.604(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 to 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:
10/28/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations