01986234
04-03-2000
Robert Gusby, Jr., Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Robert Gusby, Jr. v. Department of the Navy
01986234
April 3, 2000
Robert Gusby, Jr., )
Complainant, )
)
v. ) Appeal No. 01986234
) Agency No. 98-67400-N06
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Upon review, we find that claims 1-2 of the complaint were properly
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)), on the
grounds that complainant failed to contact an EEO Counselor in a timely
manner.<1> Complainant claimed that he was discriminated against when
(1) several staff members of the Civilian Human Resources Office denied
him assistance and (2) he was subjected to a biased investigation by
the Marine Welfare and Recreation Executive Office. Complainant stated
in his formal complaint that the most recent incident of discrimination
occurred in November 1997. Complainant did not initiate contact with an
EEO Counselor until March 9, 1998, after the expiration of the 45-day
limitation period for contacting an EEO Counselor. Complainant has
not submitted sufficient justification for an extension of the 45-day
limitation period. Accordingly, the agency's dismissal of claims 1-2
of the complaint is hereby AFFIRMED.
Upon review, we affirm the dismissal of the third claim of the complaint
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter cited as 29 C.F.R. �1614.107(a)(1)). Complainant claimed
that the agency breached a settlement agreement related to the appeal
that he filed with the Merit Systems Protection Board regarding his
removal. The record reveals that complainant also filed a petition
with the Merit Systems Protection Board, wherein he sought enforcement
of the settlement agreement. By initial decision dated November 22,
1997, the Merit Systems Protection Board denied complainant's petition
for enforcement. The Merit Systems Protection Board determined that the
agency had not breached the settlement agreement. Complainant appealed
the initial decision to the Board. In its Final Order dated July 15,
1998, the Board denied complainant's petition for review, finding that
his appeal failed to meet the standard of review.
While the agency dismissed the third claim on the grounds that complainant
had filed an appeal to the MSPB on the same matter, upon review, we find
that the third claim is more appropriately dismissed as being beyond
the purview of the EEO process. Since the claim at issue concerns an
alleged breach of a settlement entered into through the MSPB process, if
complainant believes that that agreement has been breached, his recourse
is to the MSPB, not through the EEO process. Accordingly, we AFFIRM
the dismissal of the third claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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 3, 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,
and the agency on:
DATE
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.