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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