Alan Bradley, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 10, 2010
0120101102 (E.E.O.C. Jun. 10, 2010)

0120101102

06-10-2010

Alan Bradley, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


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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