Michael E. Sullivan, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01a01860 (E.E.O.C. Apr. 19, 2000)

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.