05980248
11-05-1999
Ernest N. Bellantoni, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Ernest N. Bellantoni, )
Appellant, )
)
v. ) Request No. 05980248
) Appeal No. 01966322
Richard J. Danzig, ) Agency No. 95-68944-009
Secretary, )
Department of the Navy, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On December 30, 1997, the appellant timely initiated a request to
the Equal Employment Opportunity Commission to reconsider the case of
Bellantoni v. Department of the Navy, EEOC Appeal No. 01966322 (December
4, 1997). EEOC regulations provide that the Commission may, in its
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
that tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
The issue presented is whether the previous decision properly affirmed
the dismissal of two allegations in the appellant's complaint.
The agency dismissed one allegation in part for already being raised
in a consolidated complaint and the other for failure to timely seek
EEO counseling.
The appellant filed the instant EEO complaint alleging age, disability,
and reprisal discrimination. The Commission has reviewed two
consecutive appeals on this complaint. First, in Bellantoni v. Navy,
EEOC Appeal No. 01954085 (May 9, 1996), the Commission found that the live
allegations were: (1) the appellant's appraisal rating for the period of
July 1, 1993 through June 30, 1994, (2) the agency not implementing the
disabled Veteran Affirmative Action (DVAA) program for the appellant,
and (3) his being isolated in work area and communications which made it
difficult to accomplish his duties.<1> The decision ordered the agency
to process allegations (2) and (3), but did not order their acceptance.
The appellant did not request reconsideration of this decision.
On remand, the agency met with the appellant to clarify allegations
(2) and (3). It then issued the instant final decision defining these
allegations and dismissing them.
The agency defined allegation (2) as the agency not implementing DVAA
to enhance the appellant's employment, career development, training and
promotional opportunities. On appeal, the appellant described allegation
(2) in the same vague terms as defined by the agency.
The agency dismissed this allegation, in part, for being raised in a prior
consolidated complaint. 29 C.F.R. �1614.107(a). The previous decision
affirmed on this grounds. It is noted that the prior consolidated
complaint was the subject of a Commission decision in Bellantoni
v. Department of the Navy, EEOC Appeal No. 01963039 (December 10, 1996).
On request, the appellant argues that the agency failed to apply the
DVAA program to him since 1990.<2> He does not specify any incidents.
Given this, we find the previous decision properly affirmed the dismissal
of allegation (2). Moreover, we add that the appellant also raised
the matter in allegation (2) in a separate complaint dated October 3,
1994, i.e., complaint 95-68944-004. It was the subject of a Commission
decision in Bellantoni v. Department of the Navy, EEOC Appeal No. 01970535
(February 13, 1998). The instant complaint is dated December 21, 1994.
The agency defined allegation (3) as the appellant being assigned to
work alone in a large office from February 22, 1993 to approximately
February 1994. This included his not being provided a computer or his
own telephone line. On appeal, the appellant restated allegation (3)
as occurring from February 22, 1993 to February 21, 1994.
The agency dismissed allegation (3) on the grounds that the appellant
missed the 45 day time limit to initiate EEO counseling on this matter.
29 C.F.R. ��1614.107(b); 1614.105(a). Finding that the appellant did
not initiate EEO counseling until September 1994, the previous decision
affirmed.
On request, the appellant states that the counselor left the agency.
He contends that the agency falsely rewrote the counselor's report to
state he initiated EEO counseling in September 1994, when in fact he
contacted the counselor earlier.<3> But this contradicts the appellant's
appeal argument. On appeal, the appellant repeatedly argued that he
did not develop an awareness of the discrimination until his evaluation
was issued in August 1994. He wrote that he then contacted the EEO
counselor on September 20, 1994. This contradiction undermines the
credibility of the appellant's timeliness argument.
The appellant also argues that allegation (3) is a continuing violation
and that he is still isolated. But on appeal, the appellant stated
allegation (3) occurred from February 22, 1993 to February 21, 1994.
Given this, we will not redefine the allegation. The appellant's request
for reconsideration with regard to allegation (3) is denied.
We add that with regard to allegation (3), the appellant raised the
same allegation in prior complaint 95-68944-004. Again, this was the
subject of Bellantoni v. Department of the Navy, EEOC Appeal No. 01970535
(February 13, 1998). Accordingly, allegation (3) states the same claim
that was raised in a prior complaint and is also subject to dismissal
on that grounds.
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that the appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c). It is
therefore the decision of the Commission to deny the appellant's request.
The decision of the Commission in EEOC Appeal No. 01966322 remains the
Commission's final decision in this matter.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
Nov. 5, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations1The agency accepted
allegation (1).
2Following his request for reconsideration, the appellant mailed
five packets of correspondence to the Commission between January 27,
1998 to March 2, 1998. This correspondence is untimely and will not
be considered.
3One of the appellant's untimely submissions consisted of a statement
by a former representative who stated the appellant timely contacted an
EEO counselor on some unspecified issues in March 1994. The appellant
stated he did not provide this statement because the representative
was ill. As the appellant did not describe the nature or duration of
the illness, he did not provide adequate justification for the statement
being considered. In any event, as noted in the body of this decision,
the statement contradicts the appellant's appeal representations.