George C. McCoy, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 4, 2003
01A24299 (E.E.O.C. Mar. 4, 2003)

01A24299

03-04-2003

George C. McCoy, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


George C. McCoy v. Department of the Army

01A24299

March 4, 2003

.

George C. McCoy,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A24299

Agency No. ARTRADOC02MAY0001

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated July 10, 2002, 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. In its final decision, the agency characterized complainant's

complaint as alleging that he was subjected to discrimination on the

bases of race and in reprisal for prior EEO activity when the agency

took deliberate action to prevent him from having an EEOC hearing for

a previous complaint he filed in November 1995.

The record reveals complainant filed a previous EEO complaint dated

November 7, 1995. Therein he alleged that the agency subjected him to

discrimination on the bases of race and reprisal when:

Complainant's immediate supervisor allowed the table of distribution

allowance to be changed so that a coworker could be promoted over him;

Complainant's supervisor favored another co-worker while demoting

complainant from his work leader position;

Complainant's supervisor allowed a coworker to assume his position during

his absence while directing complainant to perform the coworker's duties;

The agency wrongfully demoted complainant and certified incorrect

information on the SF-52 form; and

On November 12, 1992, complainant was denied an equal opportunity for

training and ostracized.

In a letter dated November 28, 1995, the agency dismissed complainant's

complaint for untimely EEO Counselor contact. Complainant appealed

the dismissal to the Commission. The Commission affirmed the agency's

dismissal in a decision dated September 4, 1996. McCoy v. Department

of the Army, EEOC Appeal No. 01961855. In a decision dated March 4,

1999, the Commission denied complainant's request for reconsideration.

McCoy v. Department of the Army, EEOC Request No. 05970851. On March

29, 1999, complainant filed a civil action (Case Number 3:99-0843-17BC)

raising the same issues from his EEO complaint in the United States

District Court for the District of South Carolina, but added age as basis

of discrimination. The civil action was dismissed by a magistrate judge

on March 17, 2000. The magistrate judge dismissed complainant's civil

action as untimely filed and for failing to exhaust his administrative

remedies with respect to his age discrimination claim. The United States

Court of Appeals for the Fourth Circuit affirmed the dismissal on August

2, 2002.

In the instant complaint filed May 24, 2002, complainant alleges that

he was subjected to unlawful discrimination on the bases of race and

in reprisal for prior EEO activity when he was denied an EEOC hearing

for his complaint filed October 30, 1995, and when agency officials

�organize[d] a conspiracy to have me demoted and rid themselves of me....�

In the final decision that is the subject of the instant appeal, the

agency dismissed complainant's complaint, pursuant to 29 C.F.R. �

1614.107(a)(3). Specifically, the agency dismissed complainant's

complaint for stating the same claim decided by a United States District

Court in a previous civil action.

As an initial matter, we note that although the agency's final decision

characterized the instant complaint as only alleging that complainant

was wrongfully denied an EEOC hearing for his previous complaint, we

note that the instant complaint also alleges that the agency engaged in

discrimination when it demoted complainant. Further, although the agency

dismissed complainant's complaint for stating the same claim decided

by a federal court, we determine that complainant's claim that he was

denied a proper EEOC hearing is more properly analyzed as concerning

dissatisfaction with the processing of complainant's previous complaint.

EEOC Regulation 29 C.F.R. �1614.107(a)(8) provides that the agency

shall dismiss an entire complaint that alleges dissatisfaction with

the processing of a previously filed complaint. Moreover, under the

Commission's Management Directive 110, dissatisfaction with the processing

and adjudication of prior complaints must be raised within the underlying

complaint, not a new complaint. See EEO MD-110, (November 9, 1999),

Chapter 5. Complainant's instant claim that he was wrongly denied an EEOC

hearing concerns the processing of his previous complaint. Therefore, the

Commission dismisses this matter pursuant to 29 C.F.R. �1614.107(a)(8).

Regarding complainant's remaining claim that the agency subjected him

to unlawful discrimination when it demoted him, we determine that this

concerns the same matter raised in complainant's previous EEO complaint

and decided by the Commission. The regulation set forth at 29 C.F.R. �

1614.107(a)(1) provides that the agency shall dismiss a complaint that

states the same claim that is pending before or has been decided by the

agency or Commission. Consequently, we dismiss this matter pursuant to

29 C.F.R. � 1614.107(a)(1) .

Accordingly, the Commission AFFIRMS the agency's dismissal of

complainant's complaint for the reasons set forth in this decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

__March 4, 2003________________

Date