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

Equal Employment Opportunity CommissionJun 22, 2010
0120101799 (E.E.O.C. Jun. 22, 2010)

0120101799

06-22-2010

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. 0120101799

Agency No. 104008500427

DECISION

Complainant filed a timely appeal with this Commission from the

Agency decision dated February 24, 2010, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

BACKGROUND

In his complaint, Complainant alleged that he was subjected to

discrimination on the bases of disability and reprisal for prior protected

EEO activity under the Rehabilitation Act when, on November 20, 2009,

Complainant was informed that he would not be promoted to the GS-2102-09

level.

The Agency dismissed complaint finding that Complainant had raised

the same matter in an appeal to the Commission. The Agency noted

that Complainant filed a 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. When Complainant was denied the promotion,

he raised a claim with the EEO Office asserting that the Agency breached

the settlement agreement. The Agency issued a determination finding

that it complied with the settlement agreement. The Agency indicated

that Complainant appealed that determination to the Commission in EEOC

Appeal No. 1020101102. The Agency concluded that the matter raised in the

instant complaint was the same raised in the claim of breach. Therefore,

the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1).

This appeal followed. Complainant asserted that the instant claim

constitutes a separate claim of discrimination. As such, Complainant

requested that the Commission reverse the Agency's dismissal of the

instant complaint.

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.

It has long been established that "identical" does not mean "similar."

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident, and parties.

See Jackson v. Dept. of the Air Force, EEOC Appeal No 01955890 (April 5,

1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).

We find that the dismissal of the complaint at hand was not appropriate.

We note that the Commission in EEOC Appeal No. 0120101102 dismissed

the matter for lack of jurisdiction. Bradley v. Dept. of Navy,

EEOC Appeal No. 0120101102 (June 10, 2010). We take notice of the

Agency's determination appealed in EEOC Appeal No. 0120101102. In its

determination, the Agency found that the promotion at issue was not

specifically guaranteed within the settlement agreement. As such, the

Agency held that complainant's claim of breach actually constituted

a claim of a subsequent act of discrimination. Since the matter was

dismissed by the Commission, it is no longer pending nor was it decided

by the Commission. Furthermore, the Agency previously determined

that the claim of denial of promotion to the GS-9 level constituted

a subsequent claim of discrimination rather than a claim of breach of

the settlement agreement. Accordingly, we disagree with the Agency's

decision to dismiss the complaint at hand.

CONCLUSION

Therefore, the Commission REVERSES the Agency's final decision and REMANDS

the matter for further processing in accordance with the ORDER below.

ORDER (E0408)

The Agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The Agency shall issue

to Complainant a copy of the investigative file and also shall notify

Complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the Complainant requests a

final decision without a hearing, the Agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The Agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the Agency must send a copy of all submissions to the Complainant.

If the Agency does not comply with the Commission's order, the Complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The Complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the Complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

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 (R0408)

This is a decision requiring the Agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the Agency, or filed your appeal with the

Commission. 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. 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 22, 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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0120101799

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101799