05971031
11-02-1999
Gregory M. Chaklos, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Gregory M. Chaklos v. Department of the Army
05971031
November 2, 1999
Gregory M. Chaklos, )
Appellant, )
) Request No. 05971031
v. ) Appeal No. 01960561
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DENIAL OF RECONSIDERATION
On September 3, 1997, the Equal Employment Opportunity Commission
(Commission) received a request from Gregory M. Chaklos (hereinafter
referred to as appellant) to reconsider the decision in Gregory M. Chaklos
v. Togo D. West, Jr., Secretary, Department of the Army, EEOC Appeal
No. 01960561 (July 31, 1997), received by appellant on August 4, 1997.
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence which
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 a 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).
For the reasons set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of three allegations in appellant's
complaint on the grounds that the matters were included in a civil action
or failed to state a claim.
BACKGROUND
Appellant contacted an EEO Counselor in April 1995, alleging that he
had been discriminated against on the basis of disability (ankle injury)
and in reprisal for prior EEO activity when he was not interviewed for
a Realty Specialist position. Appellant subsequently submitted two
complaint forms in July 1995. Therein, appellant asserted that: 1. he
was not included in the group selected for interview for the Realty
Specialist, GS-7/11, position; 2. he was not selected for the position
referred to in allegation 1; 3. the Pittsburgh District solicited
applications for a Civil Engineer, GS-12, position in 1994; 4. he was
denied placement into the position referred to in allegation 3; 5. the
agency and the Department of Defense a. engaged in bad faith settlement
negotiations and failed to respond to his settlement offers; b. used the
settlement process as a stalling tactic; c. continued to deprive him
of positions in his local commuting area; and d. engaged in "a severe
intended adverse action/collateral personal and family impacts-action
that was instigated/encouraged and actively pursued (and or at least
aided or abetted DOD/DA in criminal-like discriminatory retaliation for
my on-going protected EEO complaints activity..." (Appellant's complaint
dated July 20, 1995).
By letter dated October 27, 1995, the agency accepted allegations 1 and
2 for processing. The agency, however, issued a final decision dated
October 17, 1995, dismissing the remaining allegations. The agency stated
that the matters at issue in allegations 3, 4, and 5(c) were included
in a civil action filed by appellant. In so finding, the agency noted
that appellant was alleging that the agency was continuing to deny him
priority placement rights under the Federal Employees Compensation Act
(FECA) and the Rehabilitation Act. Further, to the extent appellant was
challenging the agency's withdrawal of a settlement offer in allegations
4, 5(a), and 5(b), the agency indicated that the matter failed to state
a claim. Finally, the agency stated that it had no jurisdiction over the
matter cited in allegation 5(d), which it stated concerned the Department
of Labor's decision to discontinue his workers' compensation benefits.
The final agency decision was affirmed on appeal.
In his request for reconsideration, appellant indicated that the
agency failed to properly define the issues raised in his complaint.
Appellant also made several assertions as to the merits of allegations
1 and 2, and his claim of disability discrimination. With regard
to allegations 3 and 4, appellant noted that he applied for the Civil
Engineer position in 1994, and that the agency withdrew an offer to place
him into the position in March 1995. Appellant contended that the agency
adversely influenced the Office of Workers' Compensation Programs (OWCP)
to terminate his FECA benefits. Finally, appellant appeared to request
that the Department of Defense be joined as a party to his complaint.<1>
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request for
reconsideration, the agency's response thereto, and the entire record,
the Commission finds that appellant's request fails to meet the criteria
in 29 C.F.R. �1614.407(c). Specifically, appellant has presented no
evidence to show that the agency's dismissal of the allegations in
question was improper. In so finding, the Commission initially notes
that an independent review of appellant's complaint forms reveals that
the agency properly defined the issues therein. Further, the Commission
can discern no rationale for joining the Department of Defense as a
party to this action.
EEOC Regulation 29 C.F.R. �1614.107(c) provides that a complaint
shall be dismissed when that complaint is the basis of a pending civil
action in a United States District Court in which the complainant is a
party provided that at least 180 days have passed since the filing of
the administrative complaint. A review of Civil Action Number 95-0548
filed by appellant in the U.S. District Court for the Western District
of Pennsylvania reveals that appellant asserted that he was subjected
to disability and reprisal discrimination when he was continually denied
placement into positions for which he was qualified since 1988.
In addition, with regard to the actions cited in allegations 4 and 5, the
Commission considers settlement negotiations, including any statements
and proposals made therein, to be confidential and privileged in order
to facilitate candid interchange to settle disputes informally. To
allow appellant to base a new complaint on a settlement offer would
defeat this purpose. Montague v. Department of the Army, EEOC Request
No. 05920321 (September 16,1997), citing Olitsky v. Spencer Gifts, Inc.,
843 F.2d 123 (5th Cir.), cert. denied, 488 U.S. 925 (1988). Finally,
while appellant asserted that the agency adversely influenced OWCP to
terminate his benefits, the record shows that appellant specifically
made such an argument before OWCP in rebuttal to statements submitted
by the agency, and submitted documentation to support his assertions.
Consequently, based on our review of the record, we find that appellant
has failed to provide evidence which would warrant a reconsideration of
the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request fails to meet the criteria
of 29 C.F.R. �1614.407(c), and it is therefore the decision of the
Commission to DENY appellant's request. The decision in EEOC Appeal
No. 01960561 (July 31, 1997) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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:
November 2, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant is advised that if he wishes to pursue, through the EEO process,
the additional allegation concerning his nonselection for a Public Affairs
Specialist position, raised for the first time in his request for
reconsideration, he shall initiate contact with an EEO Counselor within 15
days after he receives this decision. The Commission advises the agency
that if appellant seeks EEO counseling regarding the new allegations within
the above 15 day period, the date appellant filed the request for
reconsideration with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a Counselor regarding the matters,
in which case the earlier date would serve as the EEO Counselor contact date.
Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998).