01A05308
06-14-2001
Garland A. Bulluck Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Garland A. Bulluck Jr. v. Department of Defense
01A05308
June 14, 2001
.
Garland A. Bulluck Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A05308
Agency No. JH-00-011
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 15, 2000, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reveals that complainant filed a formal complaint on January
18, 2000, alleging that he was subjected to discrimination on the bases
of race (Black) and age (D.O.B. 2/13/55) when the agency violated his
rights under the Family and Medical Leave Act and refused to respond
to his grievances which resulted in his absence from work and ultimate
removal from the agency in August 1997.
Complainant subsequently requested a hearing before an EEOC Administrative
Judge on May 2, 2000. While complainant's request for a hearing
was pending, the agency issued a final decision dated June 15, 2000,
dismissing complainant's complaint pursuant to the regulation set forth
at 29 C.F.R. � 1614.107(a)(4), for raising the same matter in an appeal
to the Merits Systems Protection Board (MSPB). Complainant filed an
appeal with the Commission from the June 15, 2000 agency decision.
Subsequent to the filing of the present appeal, the EEOC AJ issued a
decision dated January 17, 2001, dismissing the same complaint pursuant
to 29 C.F.R. � 1614.107(a)(4). The record does not indicate that
complainant filed an appeal with the Commission from the AJ's decision,
or any subsequent final decision issued by the agency.
On appeal, complainant contends that the agency improperly dismissed
his complaint in its June 15, 2000 decision. Complainant claims that
dismissals pursuant to 29 C.F.R. � 1614.107(a) are permitted prior to a
request for a hearing. Complainant claims that since he had requested
a hearing prior to the agency's dismissal, the agency had no authority
to dismiss his complaint following the hearing request.
As an initial matter, we find that the present appeal is properly before
the Commission. We note that even if complainant's contention on appeal
is correct, that the agency had no authority to dismiss his complaint
following his hearing request, pursuant to our regulations the AJ retained
the authority to dismiss the complaint. The record reveals that the AJ
dismissed the complaint on January 17, 2001, on the same grounds as the
agency, for raising the same matter in his EEO complaint that was raised
in an appeal to the MSPB. Thus, we find that the matter is appropriately
before the Commission.
Upon review, we find that the present complaint was appropriately
dismissed pursuant to 29 C.F.R. � 1614.107(a)(4). The record reveals
that all the issues raised in the present complaint were also raised in
complainant's MSPB appeal dated September 8, 1997. The record shows that
the Board issued a decision on complainant's appeal dated January 21,
1998, upholding his August 21, 1997 removal from the agency.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2001
__________________
Date