0120102021
06-24-2010
Joseph P. Gannatal, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Joseph P. Gannatal,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102021
Agency No. DON-10-63126-00849
DISMISSAL
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 8, 2010, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In a complaint dated February 9, 2010, Complainant alleged that the
Agency subjected him to discrimination on the bases of religion,
age (54), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when his original three NSPS job
objectives were changed to three different objectives, and management
failed to communicate the changes to him. Complainant also alleged that
the objectives were added back in September 2009. The Agency dismissed
the complaint for stating the same claim that is pending before or
had already been decided by the Agency or Commission. Specifically,
the agency asserted that the issues raised in the instant complaint
were "inextricably intertwined" with a prior complaint (Agency
No. DON-09-6316-00997), filed by Complainant that was pending at
the hearing stage (EEOC Hearing No. 480-2010-00137X) before an EEOC
Administrative Judge (AJ). The instant appeal followed.
In response to the appeal, the Agency informed the Commission that
the AJ in EEOC Hearing No. 480-2010-00137X had accepted the claims in
the instant complaint as an amendment to the complaint he was hearing
(DON-09-6316-00997). The Agency enclosed a copy of the AJ's "Order
Granting Motion To Amend" dated May 11, 2010. Therein, the AJ accepted
the claims in the instant complaint as an amendment, finding the issues
were like and related to the issues in DON-09-6316-00997.
Accordingly, because these claims are now pending before the AJ, the
Agency's final decision dismissing Complainant's complaint is VACATED
and the instant appeal is DISMISSED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2010
__________________
Date
1 Complainant will be provided with additional rights to appeal following
the AJ's adjudication of his claims and the Agency's issuance of its
final order.
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2
0120102021
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102021