0120100479
12-30-2011
Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100479
Agency No. 09-00167-02815
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 7, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
Scientist, ND-1310-04, at the Naval Surface Warfare Center in Carderock,
Maryland. On September 4, 2009, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of
national origin (Russian), age (54), and in reprisal for prior protected
EEO activity arising under Title VII and the ADEA when:
1. in June 2009, he was not selected, assigned, or promoted to the ND-5,
Temporary Program Manager position, VA# NE9-ND0830-05-4G266078-C in Code
665 filled on July 17, 2009;
2. in July 2009, he was not selected, assigned, or promoted to the ND-5,
Technical Program Manager position, VA# NE8-ND0830-05-4G162038-C-AL-48
in Code 742 filled on December 9, 2008;
3. in June 2009, agency officials failed to take remedial measures and
respond to his requests dated March 23, 2009, and May 4, 2009;
4. in June and July 2009, management officials denied his request for the
supporting agency documentation to respond to the allegations contained
in the Notice of Proposed Removal;
5. in June and July 2009, management officials denied his request for
supplemental deficient agency responses with documentation and approval
for his Request for Leave Without Pay effective June 21, 2009, until
final clearance determination by the Department of the Navy Central
Adjudication Facility (DONCAF);
6. in June 2009, management officials denied his request to rescind
the June 2009 Notice of Proposed Removal, to recall him back to work,
or to approve his Request for Leave Without Pay effective June 21, 2009,
until final clearance determination by the DONCAF; and
7. in June and July 2009, various Rear and Vice Admirals, the Secretary
of the Navy, and the Secretary of the Department of Defense failed to
respond and take remedial action regarding his Notice of Proposed Removal,
to restore him back to work, to approve his request for Leave Without Pay,
and to provide him agency documents related to letters dated June 19,
2009, and February 10, 2009.
The Agency dismissed the entirety of Complainant’s complaint.
It dismissed claims 2 through 7 as stating the same claims that were
pending before the Agency or already decided by the Agency or Commission,
citing 29 C.F.R. § 1614.107(a)(1). The Agency dismissed claims 1
through 7 pursuant to 29 C.F.R. § 1614.107(a)(9), for abuse of process,
finding that he continually presented similar or identical allegations,
and initiated the complaint process anytime the Agency did anything to
dissatisfy him. The Agency noted that Complainant had filed over 46
EEO complaints to date.
CONTENTIONS ON APPEAL
Complainant argued at length that the Agency’s decision to dismiss his
complaint was incorrect and asked the Commission to reverse the decision.
The Agency filed a brief in opposition in which it detailed the previously
filed complaints with the same or similar claims as the instant complaint,
and argued that Complainant’s behavior at various stages of the EEO
process in recent cases had met the standard for dismissal under abuse
of process.
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.
A review of the record and the Agency’s submission in opposition to
Complainant’s appeal shows that Complainant has already filed the
same claims as claims 2 through 7 in three previously filed complaints:
Agency Nos. 09-00168-00755; 09-00167-01370; and 09-00167-01828. We find
that these claims were properly dismissed as claims raised in previously
filed complaints
The regulation set forth at 29 C.F.R. § 1614.107(a)(9) provides that
the agency shall dismiss a complaint where it clearly evidences a clear
pattern of misuse of the EEO process for ends other than that which it
was designed to accomplish. Previous decisions issued by the Commission
have closely circumscribed the circumstances under which an agency
should dismiss on this basis. We find that claim 1 of the instant
complaint satisfies those narrow circumstances, in that Complainant
has claimed that he was discriminated against when he was not selected
for a temporary detail, even though he had already been issued a Notice
of Proposed Removal from the Agency on June 19, 2009. We note that we
have previously affirmed the Agency’s dismissals of Complainant’s
complaints of discriminatory non-selections in Stoyanov v. Dep’t of
the Navy, EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20,
2011) and Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120113142,
0120113817, 0120114019 (December 6, 2011). We therefore find that claim
1 was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(9).
CONCLUSION
Therefore, we AFFIRM the Agency’s final decision dismissing
Complainant’s complaint in its entirety.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 30, 2011
Date
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0120100479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100479