0120101102
06-10-2010
Alan Bradley,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101102
Agency No. RICA4412
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from a final decision
(FAD) by the agency dated December 22, 2009, finding that it was in
compliance with the terms of the July 27, 2007 settlement agreement into
which the parties entered resolving complainant's civil action filed in
the U.S. District Court for the District of Rhode Island.
The record indicates that complainant filed his civil action concerning
his allegations of employment discrimination by the agency in the
United States District Court for the District of Rhode Island, Civil
No. 04-412ML1. The matter was dismissed with prejudice pursuant to a
settlement agreement signed by the parties on July 27, 2007, and brokered
by the presiding United States District Court Judge.
By letter to the agency dated October 20, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that although the agency placed complainant in the Transportation
Specialist position proscribed in the settlement, he did not receive an
appropriate promotion in October 2009.
In its December 22, 2009 FAD, the agency concluded that it complied with
the settlement agreement. The agency noted that the promotions were
specifically not guaranteed within the settlement agreement. As such,
the agency noted that complainant's claim of breach actually constituted
a claim of a subsequent act of discrimination.
On appeal, complainant avers that the agency has engaged in actions
which are discriminatory and retaliatory, and constitute a breach of
the above-described settlement agreement.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for
the dismissal of a complaint that was the basis of a civil action
decided by a United States District Court in which the complainant is a
party. Commission regulations mandate dismissal of the EEO complaint under
these circumstances so as to prevent a complainant from simultaneously
pursuing both administrative and judicial remedies on the same matters,
wasting resources, and creating the potential for inconsistent or
conflicting decisions, and in order to grant due deference to the
authority of the federal district court. See Shapiro v. Department
of the Army, EEOC Request No. 05950740 (October 10, 1996). Moreover,
29 C.F.R. � 1614.409 provides that the filing of a civil action "shall
terminate Commission processing of the appeal."
Here, the Commission declines to take jurisdiction over the matter at
hand. When the United States District Court resolved this complaint with
the settlement agreement at issue here, the Court, not the Commission,
retained the authority to enforce the settlement agreement. See La Cross
v. United States Postal Service, EEOC Request No. 05A10027 (April 4,
2001). Complainant should address his claim of non-compliance with the
settlement agreement to the Court.
Accordingly, complainant's appeal is DISMISSED. See 29 C.F.R. � 1614.409.
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 10, 2010
__________________
Date
1 The record indicates that this matter had previously been in the
administrative EEO complaint process identified as Agency Complaint
No. RICA4412 and EEOC Hearing No. 520-2006-00160X.
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0120101102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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