01995735
08-07-2000
Larry D. Sargent, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Larry D. Sargent v. Department of the Army
01995735
August 7, 2000
.
Larry D. Sargent,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01995735
Agency No. 9903J0240
DECISION
Larry D. Sargent (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 18, 1999 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.<1> In his complaint, complainant alleged that he was subjected
to discrimination on the basis of reprisal (prior EEO activity) when:
(1) the processing of his complaint dated September 8, 1998 was delayed;
(2) he was informed that the part of his September 8, 1998 complaint
alleging that the selection process for the position of Director,
Southeast Civilian Operations Center was flawed, would be dismissed;
(3) the agency failed to honor his documentation requests under the
Freedom of Information Act (FOIA) and the Privacy Act;
(4) the Chief of Staff, Army, failed to take action to ensure that his
September 8, 1998 complaint was processed in accord with Army policy
and procedure; and
on October 12, 1998, he requested that his Congressman, Mac Collins,
forward a letter to the Secretary of the Army in regard to his September
8, 1998 complaint, but never received a response from the Secretary.
The agency dismissed claim nos. 1 and 2 pursuant to EEOC Regulation
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(5)), noting that they were moot
because the September 8, 1998 complaint was accepted in its entirety
and was currently pending investigation. Claim no. 3 was dismissed
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. Specifically, the agency concluded that the EEOC does
not have jurisdiction over the processing of FOIA requests. Finally, the
agency dismissed claim nos. 4 and 5 for failure to state a claim, noting
that complainant failed to allege a personal harm which affected a term,
condition, or privilege of employment. The agency also dismissed claim
no. 5 pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), finding that
complainant did not initiate contact with an EEO Counselor until well
beyond the 45 day limitations period.
On appeal, complainant reiterates his concerns about the agency's delays
in processing his prior complaint and notes that when the agency is
consistently not responsive to such concerns, it creates a �chilling
effect.� He also notes that claim no. 5 should not be dismissed as
untimely, as it is a continuing situation and the agency prevented him
from contacting a local EEO counselor.
Commission regulations provide that a claim that alleges dissatisfaction
with the processing of a previously filed complaint shall be dismissed.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(8)). If a complainant is
dissatisfied with the processing of his pending complaint, he should be
referred to the agency official responsible for the quality of complaints
processing. Agency officials should earnestly attempt to resolve
dissatisfaction with the complaints process as early and expeditiously
as possible. See EEO Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110) at page 5-25 (as revised, November 9, 1999). Furthermore,
given the nature of complainant's claims of improper processing, we find
that the proper method for addressing such matters would be within the
continued processing of the previously filed complaint or on appeal from
the final agency decision issued therein. Any remedial relief to which
complainant would be entitled would necessarily involve the processing
of the underlying complaint. Consequently, the agency properly dismissed
claim nos. 1, 2, 4 and 5 pursuant to 29 C.F.R. � 1614.107(a)(8).
Moreover, the Commission has held that it does not have jurisdiction
over the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
his FOIA requests under the appropriate FOIA regulations. See Gaines
v. Department of the Navy, EEOC Request No. 05970386 (June 12, 1997).
In the instant case, therefore, claim no. 4 fails to state a claim within
the purview of the EEOC regulations at 29 C.F.R. � 1614 and was properly
dismissed.
Accordingly, after a careful review of the record, we find that the agency
properly dismissed complainant's complaint and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 7, 2000
__________________
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.