Jackie R. Parker, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01990950 (E.E.O.C. Feb. 7, 2000)

01990950

02-07-2000

Jackie R. Parker, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Jackie R. Parker v. Department of the Navy

01990950

February 7, 2000

Jackie R. Parker, )

Complainant, )

)

v. ) Appeal No. 01990950

) Agency No. 98-00181-012

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On November 9, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

October 24, 1998, pertaining to his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(African-American) and in reprisal for prior EEO activity when:

Complainant was not promoted to the position of Electrical Engineering

Technician, GS-0801-11, as verbally promised in 1991;

Complainant was suppressed by management;

Complainant was not allowed to work a special shift; and

Complainant was harassed and negative remarks were made about his

work performance.

The agency dismissed claim (1) for stating the same claim raised

in Agency No. 97-00181-011. The agency also dismissed claims (2) -

(4) for alleging matters not raised with an EEO Counselor. The FAD

instructed complainant to contact a counselor within fifteen (15) days

if he wished to pursue claims (2) - (4).

On appeal, the agency explains that there is no Counselor's Report

in the record because complainant never spoke with a counselor.

The agency contends that complainant contacted a counselor regarding

his prior complaint, and filed a formal complaint on September 2, 1997.

The agency argues that complainant then filed the present formal complaint

on August 28, 1998, without first contacting a counselor.

In his formal complaint, dated August 21, 1998, complainant alleged that

claim (1) was improperly identified as a promotion, when it actually

involved a personnel action. Complainant also claimed that certain

management officials were engaged in a conspiracy to suppress him.

Complainant also asserted that a management official not involved with

his personnel action refused to allow complainant to work a special

shift necessary to complete a training program. Complainant also argues

that another agency official harassed him by making derogatory remarks

regarding his work performance.

To the extent that complainant alleges he is being suppressed, the

Commission finds that complainant is expounding on his other claims.

Therefore, claim (2) will not be considered separate from the other

claims.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides that an agency may dismiss

a matter that is pending before or has been decided by the agency or

Commission. In Parker v. Department of the Navy, EEOC Appeal No. 01990665

(Dec. 10, 1999), complainant alleged that he was not promoted to a

GS-0802-11 Electrical Engineering position, as verbally promised in 1991.

The Commission finds that claim (1) is identical to the claim raised in

Appeal No. 01990665. Accordingly, the agency's dismissal of claim (1)

is AFFIRMED.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an

agency shall dismiss a complaint 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

claim or complaint is "like or related" to the original complaint if the

later claim 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 Scher v. United States Postal Service,

EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal

Service, EEOC Request No. 05891068 (Mar. 8, 1990).

There is no evidence that complainant raised claims (3) or (4) with an

EEO Counselor. In his formal complaint, complainant acknowledges that

the official responsible for claim (3) is not involved in defeating his

attempts to gain a GS-11 position. Therefore, this matter is not like or

related to any matter for which complainant received counseling in the

present complaint, or in Appeal No. 01990665. If complainant wishes to

pursue this claim, he should contact an EEO Counselor within fifteen days.

Accordingly, the agency's dismissal of claim (3) for raising a matter

not raised with an EEO Counselor is AFFIRMED.

Claim (4), also is not like or related to complainant's allegation that

he is being kept out of a GS-11 position. Claim (4) involves harassment

from different officials from those responsible for failing to promote

him that occurred years after the incidents for which complainant sought

counseling. Further, claim (4) does not clarify or reasonably grow from

the matters counseled. Therefore, the agency's dismissal was proper.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 7, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.