0120081199-Wyman
10-13-2009
Frank E. Wyman, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Frank E. Wyman,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081199
Agency No. 076220402125
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated September 26, 2007, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. �791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), disability, age, and in reprisal for prior protected
EEO activity when on June 6, 2005 he was forced to retire. Complainant
alleges the following actions lead up to his involuntary retirement:
1. On April 19, 2005, he was placed on limited duty due to apparent heart
problems (removed from normal Firefighter duties). He asked to see his
own doctor, and his doctor released him for full duty. On April 20,
2005, he was told that his doctor's work release was not going to be
accepted by the agency because he was not a cardiologist. On April
22, 2005, management called his physician regarding his condition.
On April 27, 2005, he was informed that he would have to take a heart
stress test and, if he refused to take this test, disciplinary action
(s) would be taken against him;
2. on May 13, 2005, his request for advanced leave was denied;
3. on May 19, 2005, he was informed that since he was reassigned from
Suppression/Rescue to Fire Prevention, his annual salary would be reduced
by $22,662.00; and
4. On May 23, 2005, the Union refused to file a grievance on his behalf
over the above matter.
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. Department 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 complainant raised the same claims that have been decided
by the agency and the Commission in Frank E. Wyman v. Department of
the Navy, EEOC Appeal No. 0120074007 (December 26, 2007); request to
reconsider denied, EEOC Request No. 0520080271 (February 21, 2008)
(Commission dismissed complainant's September 17, 2007 appeal as
untimely). As such, complainant may not raise the same claims again in
accordance with the doctrine of res judicata. Further, we find that
claim 4 was properly dismissed for failure to state a claim pursuant
to 29 C.F.R. �1614.107(a)(1) and that the entire complaint was properly
dismissed for untimely EEO Counselor contact (for the instant complaint)
which was made in April 2007.
Because we affirm the dismissal of the complaint for the reasons stated
herein, it is unnecessary to address the agency's alternative grounds
for dismissal (i.e., that complainant first raised the same matter in
appeal to the Merit Systems Protection Board1).
The agency's final decision dismissing complainant's complaint is
AFFIRMED.
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
October 13, 2009
_________________
Date
1 The Merits System Protection Board dismissed the appeal for lack
of jurisdiction. Wyman v. Department of the Navy, MSPB Docket
No. SF-0752-05-0769-I-1 (February 27, 2006).
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0120081199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081199