Joseph S. Fanelli, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 30, 2005
01a51898 (E.E.O.C. Sep. 30, 2005)

01a51898

09-30-2005

Joseph S. Fanelli, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Joseph S. Fanelli v. U.S. Department of Agriculture

01A51898

September 30, 2005

.

Joseph S. Fanelli,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A51898

Agency No. USDA CR 040688

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8), on the grounds

that it alleges improper processing of a previously filed EEO complaint.

On August 6, 2004, complainant contacted an EEO Counselor and alleged

that he was subjected to discrimination in reprisal for prior EEO

activity when, without his consent, the Office of Civil Rights (OCR)

included the issue of a proposed termination in a formal EEO complaint

(Agency No. 040326). Complainant claimed that the agency's OCR took

such action to interfere with the viability of the grievance he filed

on his termination.

Informal efforts to resolve the matter were not successful and on

September 22, 2004, complainant filed a formal complaint, claiming that

he was the victim of unlawful employment discrimination in reprisal for

prior protected activity. Specifically, complainant claimed that the

OCR included the issue of his termination in the acceptance of formal

complaints. Complainant alleged that he never raised the claim of his

termination either informally or in a formal complaint. Complainant

further alleged that the inclusion of this matter in the acceptance

letter of a formal complaint prevented his pursuit of the termination

through the negotiated grievance process.

In a final decision dated December 10, 2004, the agency dismissed the

instant complaint on the grounds that it alleged dissatisfaction with

the processing of a previously filed EEO complaint.

EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency

shall dismiss a formal complaint that alleges dissatisfaction with the

processing of a previously filed EEO complaint.

Upon our review of the record, we determine that the matter raised in

the instant complaint, in essence, addresses the agency's purported

improper processing of a previously filed EEO complaint. Specifically,

complainant claims that by including the issue of his termination in

a previously filed EEO complaint, identified as Agency No. 040326,

the agency hindered complainant's ability to pursue the matter of his

termination within the negotiated grievance process.

Accordingly, the agency's decision to dismiss the instant complaint was

proper and is AFFIRMED.

Because we affirm the agency's dismissal for the reason stated herein,

we find it unnecessary to address alternative dismissal grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 30, 2005

__________________

Date