01A12455_r
07-18-2002
Leo C. McMillan, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Leo C. McMillan v. Department of the Navy
01A12455
July 18, 2002
.
Leo C. McMillan,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12455
Agency No. 01-00232-001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 16, 2001, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of sex when he was denied a noncompetitive
promotion to a GS-7 position, although he claimed that he managed
all phases of the Mayport Branch Medical Clinic's Occupational Medicine
Department. Complainant further indicated that a female nurse was hired
at the GS-11 level to perform duties he was formerly assigned.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R.
� 1614.107(a)(1), for stating the same claim that is pending before
or has been decided by the agency or Commission. The agency also
dismissed the complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or
Commission.
In Case No. 00-00232-004, complainant claimed that he was discriminated
against on the basis of sex when managers of the Preventive Medicine
Department allowed him to manage Occupational Medicine Services, Branch
Medical Clinic, Mayport, during the period October 28, 1998 to October 18,
1999, but denied him a noncompetitive promotion to a higher grade level.
The record in the instant case contains a copy of a August 28, 2000
settlement agreement in resolution of that matter. Specifically, the
settlement agreement in resolution of Case No. 00-00232-004, provided
that complainant would be reimbursed $2,075.27 for the denial of a
noncompetitive promotion to a higher grade level. The Commission finds
that the matters raised in the instant complaint address the same matter
raised in a prior complaint, Case No. 00-0232-004.
Accordingly, the agency's decision to dismiss the instant complaint was
proper and is hereby AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for
the reasons stated here, we find it unnecessary to address the agency's
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
July 18, 2002
__________________
Date