Terry L. Whitman, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 1, 2000
01a02665 (E.E.O.C. Sep. 1, 2000)

01a02665

09-01-2000

Terry L. Whitman, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Terry L. Whitman v. Department of Transportation

01A02665

September 1, 2000

.

Terry L. Whitman,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A02665

Agency No. DOT-6-00-6019

DECISION

In the present case, complainant filed a formal EEO complaint claiming

that he was the victim of unlawful employment discrimination in reprisal

for prior EEO activity when an EEO Counselor in a previous case informed

him that she would be unable to further attempt resolution of his claim

because he failed to extend the thirty day period for counseling.<1>

In addition, the complainant claims that the EEO Counselor included

misleading information in the EEO Counselor's report in an effort

to discredit him. The agency, in their final decision, found that

complainant alleged dissatisfaction with the EEO process. Specifically,

the agency found that the instant complaint raised concerns regarding

an EEO Counselor during the pre-complaint stage of a previously filed

complaint.

The regulation set forth at Volume 64 Fed. Reg. 37,644, 37,656 (to be

codified and hereinafter referred to 29 C.F.R. � 1614.107(a)(8)), provides

that an agency shall dismiss a complaint that alleges dissatisfaction

with the processing of a previously filed complaint. In this case,

complainant alleged dissatisfaction with an EEO Counselor's action in

a prior complaint. EEO Management Directive 110, Chapter 5, Section

IV.D. (November 9, 1999) provides that if a complainant is dissatisfied

with the processing of his pending complaint, he should be referred to

the agency official responsible for the quality of complaints processing.

Agency officials should attempt to resolve the dissatisfaction. In cases

where the complainant's concerns have not been resolved informally with

the agency, the complainant may present those concerns to the Commission

to an Administrative Judge at a hearing, or if no hearing is requested,

on appeal from the final agency action.

Accordingly, the agency's decision dismissing the present complaint was

proper for the reasons set forth herein and is AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 1, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), 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.