01984373
07-06-2000
Leroy J. Pletten, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Leroy J. Pletten, )
Complainant, )
)
v. ) Appeal No. 01984373
) Agency No. AIBVF09612G0940
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's final decision of March 13, 1998,
which dismissed claim 9 of Complainant's complaint, was proper pursuant
to EEOC Regulations.<1>
The record shows that Complainant filed a formal complaint on June 12,
1996, in which he claimed that he had been discriminated against on the
bases of race, color, sex, age, physical disability, and reprisal The
complaint was comprised of sixteen separate claims. One of the claims
raised in the complainant addressed the agency's agency's Tank-Automotive
and Armaments Command (TACOM) purported refusal to process two job
applications (claim 9).
The agency issued a final decision on September 11, 1996, wherein the
agency dismissed the sixteen claims on various grounds.
On appeal, the Commission affirmed the agency's decision to dismiss
fifteen of the sixteen claims. However, the Commission remanded for
further processing the claim regarding the purported refusal to process
two job applications, discussed above, and which has been identified as
claim 9. Specifically, the agency was ordered to conduct a supplemental
investigation to ascertain whether a civil action had been filed on
the matter addressed in this claim, and to either accept the claim for
investigation or issue a new final agency decision dismissing said claim.
Pletten v. Department of the Army, EEOC Appeal No. 01970625 (February
10, 1998).
On March 13, 1998, the agency once again dismissed this allegation
on the grounds of failure to state a claim and mootness after finding
that at the time Complainant submitted his application, TACOM was not
advertising either internally or externally for a GS-212-12 position
and further �there were no advertised vacancies for which [Complainant]
was qualified or wished to be considered as an outside applicant�.
On appeal, Complainant contends that the agency has engaged in a
pattern of lying and fraud. He further contends that the agency has
misrepresented the facts of his case.
Upon our review of the record, we find that this case is properly analyzed
in terms of whether the matters contained in the instant claim were raised
in a previously filed EEO complaint. Volume 64 Fed. Reg. 37,644, 37656
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.107(a)(1)) provides that the agency shall dismiss a
complaint or portion of a complaint that states the same claim that is
pending before or has been decided by the agency or the Commission.
A review of the Commission's findings in Pletten v. Department of
the Army, EEOC Appeal No. 01943206 (August 4, 1995); request for
reconsideration denied, EEOC Request No. 05960010 (July 25, 1996) shows
that Complainant had already raised the matters contained in the instant
claim prior to filing the present complaint. Based on the foregoing,
we find that the dismissed allegation had been previously decided by the
agency and the Commission. Therefore, we AFFIRM the dismissal of claim 9.
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).
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:
July 6, 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:
________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT1 On 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.