Thomas P. Spahos, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 1, 2000
01993401 (E.E.O.C. Nov. 1, 2000)

01993401

11-01-2000

Thomas P. Spahos, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Thomas P. Spahos v. Department of the Navy

01993401

November 1, 2000

.

Thomas P. Spahos,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01993401

Agency No. 99-67001-005

DECISION

Complainant filed an appeal with this Commission from a decision of the

agency 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., Section 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment

Act of 1967, as amended, 29 U.S.C. �621 et seq.<1> The decision was

issued on March 16, 1999. The appeal was postmarked March 22, 1999.

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

the complaint on the grounds that it states the same claim that is

pending before or has been decided by the agency or the Commission.

BACKGROUND

Complainant initiated contact with an EEO Counselor on June 24, 1998.

On February 23, 1999, complainant filed a formal EEO complaint wherein

he claimed that he was discriminated against on the bases of his age

(60), physical disability (high blood pressure, ulcers, diabetes),

and in reprisal for his previous EEO activity when:

1. In June 1998, he was denied a cash award that several other employees

in his work area received.

2. In April 1998, management deliberately sabotaged his work.

3. On June 19, 1998, he was issued a less than fully successful

performance evaluation.

4. Management forced him to retire or be terminated.

5. His request for information under the Privacy Act was denied.

6. On June 12, 1998, management made derogatory comments toward him

during a meeting.

In its decision, the agency dismissed the complaint on the grounds that

it states the same claim that is pending before or has been decided by

the agency or the Commission. The agency determined that each of the

claims was raised in a previous complaint filed by complainant, Agency

No. 98-67001-018, that is pending hearing before an EEOC Administrative

Judge. The agency stated that complainant raised these issues during

the investigation of the previous complaint.

On appeal, complainant contends that he lost a $25,000 bonus that he was

entitled to because he was coerced to retire earlier than he had planned.

Complainant argues that agency officials told him that he would be fired

if he failed to drop his EEO complaints.

In response, the agency asserts with regard to claim 1 that complainant

raised the denial of a cash award during the investigation of the first

complaint. The agency states that complainant also made a claim for

relief with regard to the first claim. As for the second claim, the

agency states that although the April 1998 time period is subsequent

to the time period covered by the first complaint, complainant placed

evidence about the April 1998 sabotage of his work into the record and

he raised this matter during the investigation of the first complaint.

With regard to claim 3, the agency asserts that the performance

appraisal rating was never made official. The agency states the this

claim should have been dismissed for mootness or alleging a proposed

personnel action. In terms of claims 4 and 5, the agency asserts

that complainant specifically raised both of these claims during the

investigation of his first complaint, and that he requested relief for

these claims as part of his first complaint. With regard to claim 6, the

agency notes that although this claim was not specifically raised during

the investigation of the previous complaint, it is part of a continuing

violation claim that complainant has articulated concerning management

actions in the form of harassment, sabotage, and undermining him in

his position. The agency reasons that this claim was brought to the

attention of the Office of Complaint Investigation (OCI) investigator.

The agency argues in the alternative that this claim is so similar to

the claims in the first complaint that it has been consolidated with the

first complaint through complainant's testimony to the OCI investigator.

The agency notes that such testimony duplicated the first paragraph of

the second complaint. In conclusion, the agency asserts that through

complainant's statements and documents provided to the OCI investigator,

and the relief requested, all of the claims of his second complaint are

already pending before the agency through the first complaint.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

It has long been established that �identical� does not mean �similar.�

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident, and parties.

See Jackson v. United States Postal Service, EEOC Appeal No. 01955890

(April 5, 1996).

The agency maintains that the instant complaint states the same claim

as the prior complaint since complainant raised claims from the instant

complaint during the investigation of the previous complaint. We find

that the agency has not sufficiently supported its position. Upon review

of the record, we note that the record does not contain a copy of the

prior complaint that is referenced by the agency. Moreover, the agency

has not demonstrated that the claims raised in the instant complaint

will be addressed in the matter pending before an EEOC AJ. The mere

reference by complainant during the investigation of the first complaint

to issues that were subsequently raised in the instant complaint does not

establish that these matters were incorporated into the first complaint

as distinct claims to be adjudicated as part of the first complaint.

Therefore, the agency's dismissal of the instant complaint on the grounds

that it states the same claim as that pending before the Commission was

improper and is REVERSED.<2> Accordingly, this complaint is REMANDED

to the agency for further processing pursuant to the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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 (M0900)

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

November 1, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We note that the agency asserts in its response that claim 3 should have

been dismissed on the grounds of mootness or that it relates to a proposed

action. It has not been conclusively established that the alleged rating

issued to complainant was withdrawn or otherwise not made official.

Absent conclusive evidence, we find that the claim can not be considered

moot and also that it does not involve a proposed personnel action.