Wilbert L. Merriweather, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 8, 2010
0120101117 (E.E.O.C. Jun. 8, 2010)

0120101117

06-08-2010

Wilbert L. Merriweather, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Wilbert L. Merriweather,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120101117

Agency No. ARCEOMAHA09MAR1087

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 18, 2009, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

In April 2009, complainant filed a formal EEO complaint alleging that

the agency discriminated against him on the bases of race (Black),

sex (male), and age (over 40) when, in February 2009, the agency

charged complainant with 6.5 hours of absence without official leave

(AWOL) although he attempted to get approval from several managers,

in his immediate manager's absence, to leave for a family emergency.

On August 6, 2009, during a fact-finding conference, complainant

withdrew his formal EEO complaint. In a formal EEO complaint dated

December 3, 2009, complainant alleged fraud and misrepresentation by

agency management regarding the February 2009 AWOL charge and requested

"reversal of discipline, payment of lost wages, payment of attorney's

fees, and pain and suffering."

In its December 18 final decision, the agency dismissed complainant's

December 3 complaint pursuant to 29 C.F.R. � 1614.107(a)(1), stating

allegations of dissatisfaction with the processing of an EEO complaint

fails to state a claim. On appeal, complainant acknowledged that he

withdrew his complaint. Complainant stated that management indicated

that it sent emails regarding the appropriate process/policy for leave

approval in the absence of the Division Chief and he felt it would be

difficult to show the agency was wrong.1 Complainant added that he

later learned that the emails were not sent so the agency would not be

able to show he had knowledge of such a policy. Complainant stated that

the agency misrepresented the facts.

As an initial matter, we find that complainant abandoned

ARCEOMAHA09MAR1087 when he signed the Withdrawal of Complaint form,

dated August 6, 2009 and indicating said agency number. The reason for

the withdrawal provided by complainant does not void the withdrawal.

In addition, 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. Upon review of the record, we find that the gist of

complainant's December 2009 complaint is the same as the April 2009

one (ARCEOMAHA09MAR1087) - to grieve the charge for 6.5 hours of AWOL.

It also served to complain about the processing of ARCEOMAHA09MAR1087.

The latter, complaints about processing, are called "spinoff complaints"

and can not be processed apart from the underlying complaint. With that

said, here, we find that the claim raised in ARCEOMAHA09MAR1087 is the

same as that raised in the subsequent December 2009 complaint so the

agency's decision to dismiss the complaint was appropriate. We AFFIRM

the procedural dismissal of ARCEOMAHA09MAR1087.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

June 8, 2010

__________________

Date

1 We note that the record contains page 71 of the fact-finding conference

transcript and two written "Withdrawal of Formal Complaint" forms,

all indicating complainant sought to withdraw ARCEOMAHA09MAR1087.

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0120101117

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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