01993390
04-20-2000
Lee S. Ingerman, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lee S. Ingerman, )
Complainant, )
)
v. )
) Appeal No. 01993390
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________ )
DECISION
On March 19, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dismissing his complaint.<1>
The appeal is accepted by the Commission in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The record indicates that on or about March 4, 1997, complainant filed
an informal complaint alleging that he was discriminated against on
the basis of reprisal when he was denied an opportunity to attend a
CPR training class. On March 17, 1997, he received a Notice of Final
Interview. On March 18, 1997, complainant's supervisor, by memorandum
to an EEO counselor, indicated that she would schedule complainant for a
CPR class. Later that day, complainant, in response to his supervisor's
memorandum, wrote the EEO counselor that �I am satisfied that management
has taken and will continue to take appropriate action in support of my
proposal to settle this EEO complaint informally. Consequently, this
is official notification that I am withdrawing my complaint.� We note,
however, that no settlement agreement was ever executed by the parties.
Complainant merely withdrew his informal complaint.
On September 29, 1997, complainant sent a memorandum to his EEO counselor
requesting that his informal complaint be reinstated because he had
not yet been scheduled for a CPR class. Complainant was immediately
scheduled for the next available class. On October 24, 1997, complainant
attended a CPR class, but, after one hour, he walked out of the classroom.
Complainant maintained that the class was �an advance[d] class with
Doctors & Nurses in attendance.� On December 2, 1997, he wrote the
agency alleging that a settlement agreement had been violated because
he had not been scheduled for a basic CPR class. On January 30, 1998,
an agency official informed complainant that there was no settlement
agreement, but merely a memorandum withdrawing his informal complaint.
He was advised that he should seek EEO counseling if he felt he was
being discriminated against.
On February 10, 1998, complainant filed a formal complaint alleging
that he was discriminated against in reprisal for engaging in
previous EEO activity when he was not scheduled for a basic CPR class.
Complainant provided February 10, 1998, as the date the discriminatory
event occurred. Subsequently, in an attempt to provide more detailed
information about his claim, complainant revealed that the date �February
10, 1998,� was indicated because of the advice of the EEO counselor, not
because anything actually happened on that date. The agency dismissed
complainant's complaint on the grounds that it concerned a matter that
was the subject of a previously withdrawn complaint; failed to state a
claim; and was moot.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(1)) authorizes an agency to dismiss a complaint or portion
thereof which states the same claim that is pending before, or has
previously been decided by the agency or the Commission. A complainant
may not, as in the present case, file a second complaint where s/he
has previously raised and withdrawn the issue. Rebello v. USPS, EEOC
Request No. 05980211 (June 24, 1999); Williams v. USPS, EEOC Request
No. 05950696 (December 19, 1996). This is true even when the original
issue was withdrawn during EEO counseling. Id. We find that the
language in the complainant's March 18, 1997 memorandum of withdrawal
was sufficiently clear and specific. We find that complainant knowingly
and voluntarily withdrew his claim. We further find that the parties,
at the time complainant withdrew his complaint, had not entered into a
settlement agreement on this matter<2>; consequently, the dismissal of
the complaint is AFFIRMED.<3>
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
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); 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).
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:
April 20, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________
_________________________________
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.
2We note that the agency, in February 1999, attempted to negotiate a
settlement with complainant to resolve his February 1998 complaint,
but he declined.
3Because of our decision above, we do not find it necessary to address
the dismissal of the complaint on the grounds that it fails to state a
claim or is moot.