01990878
02-24-2000
James H. Low, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James H. Low v. Department of the Navy
01990878
February 24, 2000
James H. Low, )
Complainant, )
)
v. ) Appeal No. 01990878
) Agency No. COL98NA0201E
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant filed the instant appeal on September 16, 1998 apparently
concerning a complaint the agency found was filed on August 12, 1997.<1>
By letter dated October 31, 1997 the agency defined the accepted claim
from the August 12, 1997 complaint as follows:
You allege discrimination based on reprisal . . . when you were asked to
meet with [Persons A and B] on 20 February 1997, under false pretext, to
discuss training issues as pertains to the Settlement Agreement signed on
13 December 1996. You further allege you were questioned about breaching
the confidentiality clause in the agreement and asked to sign a statement
that you breached the confidentiality clause in the agreement.
No agency decision was issued pertaining to accepted claim from the
August 12, 1997 complaint prior to the filing of the instant appeal.
In the October 31, 1997 decision the agency dismissed complainant's claim
that in retaliation the agency breached the December 13, 1996 settlement
agreement. The agency found that a claim that the agency breached a
settlement agreement can not be raised as a separate a complaint.
On June 17, 1998, an EEOC Administrative Judge issued a Hearing Order for
the instant complaint explaining the hearing process including discovery
rights. On July 14, 1998 an EEOC Administrative Judge issued a Notice
stating the instant complaint involved a claim of breach of settlement.
The EEOC Administrative Judge, in the Notice, remanded the matter to
the agency for processing pursuant to the regulation now set forth at
64 Fed. Reg 37,644, 37,660 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.504).
On October 23, 1998 the Commission issued a decision in Low v. Department
of the Navy, EEOC Appeal Nos. 01973387 and 01982661, finding that the
agency breached the December 13, 1996 settlement agreement.
In the instant appeal complainant seems to argue: (1) the agency
has failed to comply with the Hearing Order; (2) the agency has not
processed the claim concerning the February 20, 1997 incident(s); and
(3) the agency breached the December 13, 1996 settlement agreement.
On appeal, by letter dated December 29, 1998, the agency argues that
the instant complaint was rendered by moot by the Commission's decision
in Low, EEOC Appeal Nos. 01973387 and 01982661. The Commission deems
the December 29, 1998 letter to be a decision dismissing the instant
complaint as moot.
The Commission finds that the instant complaint is properly dismissed
for failing to state a claim pursuant to the regulation set forth at
64 Fed. Reg 37,644, 37,656 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)). Complainant has not shown how
he was aggrieved by the February 20, 1997 incident(s). The Hearing
Order by the administrative judge was superseded by the Notice issued
by the administrative judge. Therefore, the agency's dismissal of the
complaint does not contradict any Order of the administrative judge.
To the extent that complainant is contending that the agency breached
the settlement agreement, we find that such a claim (concerning the
relevant time period) has been decided by the Commission in Low,
EEOC Appeal Nos. 01973387 and 01982661. Therefore, we find that to
the extent that complainant is contending that the agency breached
the settlement agreement, we find that such a claim (concerning the
relevant time period) is properly dismissed pursuant to � 1614.107(a)
(1) for stating the same claim which has been decided by the Commission.
The agency's decision dismissing the complaint 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 24, 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
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.