01992798r
03-22-2002
Michael Necochea, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation) Agency.
Michael Necochea v. Department of Justice
01992798
March 22, 2002
.
Michael Necochea,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation)
Agency.
Appeal No. 01992798
Agency No. F-98-5122
DECISION
Complainant timely initiated an appeal 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the basis of reprisal when his supervisor placed a negative
statement in his performance appraisal and informed his other supervisors
that the complainant had allegedly made a false written statement in an
official document.
On appeal, complainant contends that he originally filed a complaint in
June 1997 prior to the instant complaint claiming, among other things,
that his performance appraisal was discriminatory but that the agency
refused his requests to consolidate it with the instant complaint alleging
reprisal. According to complainant, the June 1997 complaint cited a
pattern of discriminatory actions of S1 against him over an extended
period of time, including the issuance of the alleged discriminatory
performance appraisal issued in May 1997.
The record indicates that the complainant initially requested the agency
to consolidate the instant complaint with his June 1997 complaint in
a letter dated July 22, 1998 after receiving a copy of the record of
investigation. In that letter, complainant made reference to a previous
request he had made to the agency to conduct a joint investigation
and that the reason for the request was that the complaint alleging
reprisal was directly linked to a specific issue raised in the June 1997
complaint.<1> He further argued that separating the two complaints
essentially defeated his claim of a pattern of discriminatory conduct
and harassment for which he alleged his supervisor was responsible.
The agency did not respond to or address the issue of consolidation.
Based on our review of the record, the Commission finds this matter
must be remanded to the agency for consolidation with complainant's
first complaint which is identified in the record under agency number
F-97�4997. 29 C.F.R. �1614.606. Under the Commission's regulations as
amended in 1999, agencies are discouraged from fragmenting complaints
particularly where they concern related issues as in the present case.
See EEOC Management Directive 110 (MD 110) at Chapter 5-5.(as revised
11/9/99). In this case, complainant has alleged that his supervisor's
actions in wrongfully reporting that he made a false statement in a report
and in placing another negative statement in his October 1997 evaluation,
were in reprisal for filing the June 1997 complaint. Because the issues
in both complaints are related, the complaints should be consolidated
for joint processing.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we VACATE the agency's
final decision and REMAND this case for the agency to take actions in
accordance with the ORDER below.
ORDER
The agency is ordered to take the following action:
1. Within 30 days of the date the agency receives this decision, the
agency will consolidate for joint processing the two complaints cited in
this decision and if applicable, issue notice with appropriate rights
to the complainant under 29 C.F.R. �1614.108 or a final decision as to
both complaints jointly under 29 C.F.R. �1614.110.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 22, 2002
Date
1Complainant made reference to a letter dated March 9, 1998 in which
he requested the agency to consolidate his two complaints for joint
processing. There is no copy of that letter in the record.