Marion A. Lamb, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01a00263 (E.E.O.C. Feb. 18, 2000)

01a00263

02-18-2000

Marion A. Lamb, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Marion A. Lamb, )

Complainant, )

)

v. ) Appeal No. 01A00263

) Agency No. DON 99-00161-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On October 12, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on September 13,

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> The Commission accepts complainant's appeal

in accordance with EEOC No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

instant complaint because the claims raised therein have already been

decided by the agency.

BACKGROUND

The record reflects that on January 21, 1999, complainant initiated

contact with an EEO Counselor. During the counseling period, complainant

stated that on December 8, 1998 he received a letter from Senator

Mikulski regarding a disciplinary action taken against another public

works employee and complainant believes that action was not as sever as

the action taken against

him in March 1993. Also, complainant realized that from September 1994

through February 1995, he was assigned to a position that was of a higher

level, but the agency failed to promote him appropriately in accordance

with his new duties.

Counseling failed, and on May 3, 1999, complainant filed a formal

complaint claiming that he was the victim of unlawful employment

discrimination on the bases reprisal for filing prior EEO complaints.

The formal complaint was comprised of the matters for which complainant

underwent EEO counseling, discussed above.

On September 13, 1999, the agency issued a final decision dismissing

complainant's complaint for raising the same issues as in complaint

No. DON 95-00161-001. The agency further dismissed the issue of

discipline by reasoning that failed to establish a prima facie case.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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. It has long been

established that "identical" does not mean "similar." The Commission

has consistently held that in order for a complaint to be dismissed as

identical, the elements of the complaint must be identical to the elements

of the prior complaint in time, place, incident, and parties. See Jackson

v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996)

rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).

In the present case, the record reflects that complainant has

previously raised an issue of promotion for assigned duties in agency

case No. 95-00161-001. However, this complaint dealt with the lack

of a promotion in May 30, 1993, and the present case deals with the

lack of a promotion for an assignment of duties from September 1994

through February 1995. Therefore, based on the present record, it

appears that complainant is disputing a separate more recent incident

of discrimination; while both claims involve promotions, there were

two separate personnel actions effected. Therefore, the two claims

for promotions are not identical. Accordingly, the agency improperly

dismissed the claim of failure to promote because the same claim is

before or has been decided by the agency.

With regards to the claim of discipline, the record is clear that agency

case No. 95-00161-001 does not state a claim of discipline. Moreover,

the agency's analysis of the claim of discipline, based on reprisal,

at this stage of the process, was improper. More appropriately, the

agency should be focusing on whether or not the complainant has stated

a timely, cognizable claim, in which relief can be granted. Therefore,

the agency's decision dismissing this claim for raising the same claim

that was previously before the agency and because it fails to establish

a prima facie case of reprisal was improper.

CONCLUSION

For the reasons set forth herein, the Commission hereby REVERSES the

agency's final decision dismissing the present case. Accordingly, the

present complaint is hereby REMANDED to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

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

(R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 18, 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.