01981409
01-14-1999
Lawrence C. Burdick, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Lawrence C. Burdick v. Department of Transportation
01981409
January 14, 1999
Lawrence C. Burdick, )
Appellant, )
)
v. ) Appeal No. 01981409
) Agency No. 4-98-023
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's November 21,
1997 decision dismissing appellant's complaint for stating the same
claim which was raised by appellant in a complaint previously filed by
appellant (agency number 4-96-106) which is pending a hearing before an
EEOC Administrative Judge. There is no decision from the administrative
judge in the record concerning 4-96-106 and there is no indication in
the record that such a decision has been issued.
The agency defined the instant complaint as alleging that appellant was
discriminated against on the basis of reprisal when management denied
appellant and his representative compensatory time and other schedule
adjustments to allow appellant to prepare a complete statement for his
prior complaint (4-96-106). On appeal appellant argues that he raised
five allegations in the instant complaint. The Commission finds that
all of these allegations concern official time for the processing
of complaints and that are all essentially one type of allegation.
Furthermore, the accepted issue in 4-96-106 concerns, in part, the issue
of official time. A copy of the investigation for 4-96-106 shows that
the issues raised in the instant complaint were raised and considered
during the investigation of 4-96-106. Under the instant circumstances
we find that the instant complaint is properly dismissed pursuant to 29
C.F.R. �1614.107(a) for stating the same claim that is pending before
the agency or Commission.
If the agency ultimately does not consider in 4-96-106 the allegations
raised in the instant complaint, then appellant should contact the agency
and request that the instant complaint be reinstated.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 14, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations