J. Paul Alston, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01990646 (E.E.O.C. Sep. 23, 1999)

01990646

09-23-1999

J. Paul Alston, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Security Service), Agency.


J. Paul Alston v. Department of Defense

01990646

September 23, 1999

J. Paul Alston, )

Appellant, )

)

v. )

) Appeal No. 01990646

William S. Cohen, ) Agency No. DSS-98-038-11-M

Secretary, )

Department of Defense, )

(Defense Security Service), )

Agency. )

______________________________)

DECISION

The appellant timely filed an appeal with this Commission from a

final agency decision (FAD), dated October 16, 1998, which the agency

issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a) and (b).

The Commission accepts the appellant's appeal in accordance with EEOC

Order No. 960, as amended.

On July 27, 1998 appellant contacted the EEO office regarding allegations

of discrimination on the bases of race (black) and reprisal (prior

EEO activity). Informal efforts to resolve appellant's concerns were

unsuccessful. Accordingly, on September 8, 1998 appellant filed a

formal complaint. The agency defined the allegations as follows:

On July 27, 1998 appellant was discriminated against on the bases of

race (black) and reprisal (prior EEO activity) when he was given a

letter of reprimand for not following his supervisor's instructions;

Appellant believes that the agency discriminated against black males from

1980 until the present in its employment practices, including hiring,

retention, awards, disciplinary actions, and work assignments;

On September 1, 1993 appellant was reassigned from the position of

Industrial Security Specialist, GS-080-13, to the position of Industrial

Security Specialist, GS-080-12, due to a reduction in force; and,

Appellant believes he was discriminated against on the basis of race

when he was not permitted to work from his residence.

The agency dismissed allegations 2, 3, and 4 for raising a matter that has

not been brought to the attention of an EEO counselor. Allegation 3 was

also dismissed for stating the same claim that has been decided by the

agency or Commission. Specifically, the agency indicated that appellant

filed a complaint on April 19, 1993 alleging breach of a April 30, 1990

settlement agreement, when appellant was reassigned due to a reduction

in force. The agency found that it was in compliance with the agreement,

and the Commission agreed in a decision issued on August 18, 1993.

Allegation 1 was accepted for investigation.

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that

an agency shall dismiss a complaint or portion thereof which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later allegation or complaint is "like or related"

to the original complaint if the later allegation or complaint adds

to or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Calhoun v. United States Postal Service, EEOC Request No. 05891068

(March 8, 1990); Webber v. Department of Health and Human Services,

EEOC Appeal No. 01900902 (February 28, 1990).

In the instant case, there is no evidence in the record that appellant

discussed the dismissed allegations during his EEO counseling.

The Counselor's Report only reveals a discussion on the letter of

reprimand (allegation 1). On appeal, appellant indicates that the

dismissed allegations are "like and related" to the accepted allegation.

The Commission, however, does not find that appellant's allegation of

discrimination against black males in the agency's employment practices

(allegation 2) clarifies the reprimand issue. Nor do the claims

regarding reassignment (allegation 3) and working from home (allegation 4)

seem to grow out of the accepted allegation. Therefore, we find that

the agency properly dismissed allegations 2, 3, and 4 pursuant to 29

C.F.R. �1614.107(b).

On appeal, appellant states that the 1993 reduction in force claim

(allegation 3) was included in his complaint merely for the purpose of

background information. Therefore, due to our disposition and appellant's

statement on appeal we do not consider whether allegation 3 was properly

dismissed pursuant to 29 C.F.R. �1614.107(a).

Accordingly, the agency's decision dismissing allegations 2, 3, and 4

is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

September 23, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations