01a01860
04-19-2000
Michael E. Sullivan, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michael E. Sullivan v. Department of the Navy
01A01860
April 19, 2000
Michael E. Sullivan, )
Complainant, )
)
v. ) Appeal No. 01A01860<1>
) Agency No. DON 99-00019-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On December 1, 1999, complainant filed an appeal from the agency's
final decision of October 6, 1999, which he claims to have received on
November 24, 1999.<2> Upon review, we find that the agency improperly
dismissed complainant's complaint for failure to state a claim.<3>
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)). In his complaint filed on
September 23, 1999, complainant alleged that he was discriminated against
when on July 22, 1999, he was not selected for the position of Head,
Systems Engineering Department, Code 4.1, Announcement No. 99-11-SES.
In dismissing the subject complaint, the agency found that since
complainant was not among the qualified candidates on the Merit Promotion
Referral List submitted to the selecting official, he was not aggrieved
by his non-selection. We find that the agency improperly addressed the
merits of the complaint in a procedural decision. See Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993)
(citing Odoski v. Department of Energy, EEOC Appeal No. 01901491 (April
16, 1990)). Complainant was aggrieved with regard to a term, condition,
or privilege of his employment as a result of the alleged non-selection;
thus, the complaint stated a claim. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review of the record, however, we find that complainant previously
raised the issue of his non-selection for the position of Head,
Systems Engineering Department, Code 4.1, Announcement No. 99-11-SES
in a previously accepted complaint, agency number DON 99-00012-004.
Accordingly, we find that dismissal of the subject complaint was proper
pursuant to 29 C.F.R. � 1614.107(a)(1), which provides, in pertinent part,
that the agency may dismiss a complaint that states the same claim that
is pending before the agency. Consequently, the agency's dismissal is
AFFIRMED for the reasons set forth herein.
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 19, 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 Assistant
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.
2The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date complainant
received the agency's final decision. Accordingly, since the agency
has failed to fulfill its obligation to transmit its final decision by a
method enabling the agency to show the date of receipt, the Commission
presumes that complainant's appeal was filed within thirty (30) days
of receipt of the agency's final decision. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.402).
3We note that complainant refers to two agency numbers in his appeal,
DON 99-00019-004 and DON 99-00019-002; however, since it appears that
DON 99-00019-002 was accepted for further processing by agency letter
dated July 27, 1999, it would be premature for the Commission to address
that case herein.