Gregory M. Chaklos, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 2, 1999
05971031 (E.E.O.C. Nov. 2, 1999)

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).