01985207
09-09-1999
Michael McCray, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Michael McCray v. Department of Agriculture
01985207
September 9, 1999
Michael McCray, )
Appellant, )
) Appeal No. 01985207
v. ) Agency No. CR980439
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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. The FAD was dated May 1, 1998.
The appeal was postmarked on June 17, 1998. The timely<1> appeal is,
therefore, accepted in accordance with EEOC Order No. 960.001, as
amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint because the issues therein were already pending
before the agency.
BACKGROUND
Appellant filed a formal complaint on March 16, 1998 alleging
discrimination on the basis of reprisal (prior EEO activity and
complaints) when the agency assigned appellant work at the GS 11/12/13
level without promotion from the GS-9 level (allegation one). Appellant's
formal complaint also contained issues of: 1) denial of training approved
in or around April 1996; 2) not being given the opportunity to be promoted
to vacant positions; and 3) never receiving a performance evaluation
(other allegations).
In its FAD, the agency accepted allegation one, but dismissed the other
allegations on the grounds that these issues were already pending before
the agency in agency complaint numbers CR970691 filed on August 20,
1997, and CR980194 filed on December 1, 1997. The record reveals that
agency complaint numbers CR970691 and CR980194 had been consolidated
for investigation under agency complaint number CR970691. This appeal
followed.
The record also reveals that agency complaint number CR970691 concerned
the same issues as the other allegations mentioned in the instant case.
In his statement to us on appeal, appellant did not dispute that the other
allegations which he asserted in the instant complaint were the same
as those in the complaints he previously filed. He asserted, rather,
that all of his complaints should be consolidated to avoid confusion
and evidence being overlooked.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) states that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the Agency or the
Commission.
We agree with the agency that appellant's other allegations should be
dismissed because they state the same claims as those already pending
before the agency.
EEOC Regulation 29 C.F.R. �1614.606 states that two or more complaints of
discrimination from the same complainant may be consolidated by the agency
for joint processing after appropriate notification to the parties.
Absent some evidence of abuse of discretion on the agency's part,
the decision whether to consolidate complaints is within the agency's
discretion. Since the record does not reveal abuse of discretion in the
agency's decision to keep the complaints separate, we will not order the
agency to consolidate appellant's complaints. However, to the extent
that it is still feasible, we would strongly encourage the agency to
join the complaint before us with appellant's prior complaints.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 9, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The agency did not supply a copy of a certified mail return receipt or
any other material capable of establishing the date appellant received the
FAD. Since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within thirty
(30) days of receipt of the agency's final decision. See 29 C.F.R.
�1614.402(a).