01a00613
02-24-2000
Lamon Grier, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Lamon Grier, )
Complainant, )
)
v. ) Appeal No. 01A00613
Rodney E. Slater, ) Agency No. OST-99-012
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On October 14, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
September 16, 1999, 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
(Black), mental disability (post-traumatic stress disorder), and in
reprisal for prior EEO activity when:
The Departmental Office of Civil Rights (DOCR) failed to acknowledge
receipt of a formal complaint dated April 9, 1999; and
The Departmental Office of Civil Rights failed to provide complainant
with a copy of an EEO Counselor's report.
The agency dismissed complainant's complaint on the grounds that it failed
to state a claim. Specifically, the agency stated that complainant's
present complaint relates to the processing of complainant's April 9,
1999 discrimination complaint, which the agency found should not be
addressed in a separate proceeding.
Volume 64 Fed. Reg. 37, 644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(8)) provides that the agency
shall dismiss an entire complaint that alleges dissatisfaction with the
processing of a previously filed complaint (spin-off complaint).<2> In
the present case, both of the issues in complainant's complaint concern
the alleged improper processing of a previous EEO complaint. Therefore,
under the Commission's regulations, the agency is required to dismiss
complainant's claims of improper processing. When claims of improper
processing are raised, the complainant should be referred to the agency
official responsible for the quality of complaints processing, and the
agency should earnestly attempt to resolve any dissatisfaction with the
complaints process as early and expeditiously as possible. EEOC-MD 110
(5-25), as revised, November 9, 1999. Complainant is therefore advised
to contact an official in the agency's EEO office, if he believes that
any complaint has been improperly processed.
Accordingly, the agency's dismissal of complainant's complaint is proper
and is hereby AFFIRMED for the reasons set forth herein.
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 Equal Employment Assistant1On 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.
2Although there was no specific provision in the regulations requiring
agencies to dismiss spin-off complaints prior to the November 9th
revisions, there was no provision in either the regulations or the
management directive permitting the filing of a separate complaint on
this issue. See 64 Fed. Reg. 37,644, 37,645 (1999).