Larice Cooper, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01a01186 (E.E.O.C. Aug. 22, 2000)

01a01186

08-22-2000

Larice Cooper, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Larice Cooper v. Department of the Navy

01A01186

August 22, 2000

.

Larice Cooper,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A01186

Agency No. 99-67004-026

DECISION

On November 22, 1999, complainant filed a timely appeal with this

Commission from an agency decision pertaining to his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (Black), sex, (male), and in reprisal for prior EEO activity when

management violated a November 1994 settlement agreement by not fairly

rotating jobs, unfair assignment of overtime, and special treatment

towards employees that testified against him.

The agency dismissed complainant's breach claim as stating the same claim

as pending before, or already decided by, the agency. Specifically,

the agency determined that the issues raised in the instant complaint

had been heard and decided by an EEOC Administrative Judge (AJ) on March

1999, with the agency adopting the AJ's decision on April 7, 1999.

On appeal, complainant asserts that the agency has never complied with

the settlement and has �continued to treat [him] different from other

employees.� In particular, complainant asserts that the agency does not

rotate work assignments on an equal basis as called for in the agreement,

and that he is required to perform the less desirable work assignments

on a constant basis.

The record shows that the November 1994 settlement agreement between the

parties provided, in pertinent part, that the agency had an obligation to

ensure that �Workload and rotational responsibilities will be executed on

a fair and equitable basis.� The record also indicates that the March

18, 1999 AJ's decision adopted by the agency, specifically considered

complainant's claim that the agency breached the settlement agreement

by failing to rotate him fairly among job duties and workloads.

Upon review of the record, we find that complainant's claim of breach was

properly dismissed. While complainant asserts that the agency has never

complied with the settlement and has continued to treat him differently

from other employees, his appeal fails to address the agency's basis

for dismissal of his complaint. Although asserting he is given less

desirable work assignments on a �constant basis,� complainant has not

provided any evidence that his present claim that the agency failed to

rotate him fairly among job duties is different from the claim already

decided by the agency in its April 7, 1999 decision.

Accordingly, the agency's decision dismissing the breach claim is

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

August 22, 2000

__________________

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at www.eeoc.gov.