01A30657_r
03-26-2003
Percy L. McIntosh, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Percy L. McIntosh v. Department of the Treasury
01A30657
March 26, 2003
.
Percy L. McIntosh,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A30657
Agency No. 03-4017
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 24, 2002, dismissing 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.
In his formal EEO complaint, complainant alleged that he was subjected
to discrimination on the basis of reprisal for prior EEO activity when
he was restrained from distributing information on a pending EEO class
action complaint (Agency No. 01-0019C), filed on April 17, 2001, in which
he was the primary agent.<1> Complainant further alleged that on July 12
and August 16, 2002, respectively, management denied his requests to use
the IRS e-mail system or pass out flyers to African American employees
about a class action meeting. Further, complainant alleged that he was
restrained and interfered with in the presentation and processing of
the class action complaint.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(8),
on the grounds that complainant alleged dissatisfaction with the
processing of a previously filed EEO complaint.
On appeal, complainant contends that he did not allege dissatisfaction
with a previously filed complaint but that he was restrained and
interfered with the processing of the class action complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the EEO process must be raised within the underlying complaint,
not a new complaint. See EEOC -Management Directive 110 (as revised
Nov. 9, 1999) 5-23, 5-25 to 5-26.
Here, the complaint's sole claim is that complainant was restrained
from distributing information on a pending EEO class action complaint
(Agency No. 01-0019C), in which he was the primary agent. As the instant
complaint alleges dissatisfaction with a prior complaint, the agency's
dismissal of the instant complaint was proper and is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2003
__________________
Date
1The record reveals that on September 17,
2002, an EEOC Administrative Judge (AJ) found complainant to be an
inappropriate class agent in the class action complaint because of his
role as an EEO Specialist. The record further reveals that on September
26, 2002, the AJ granted complainant's request to withdraw his request
for class certification without prejudice (Hearing No. 370-A1-X2446).