01980995
11-06-1998
Leonard A. Mobley, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Leonard A. Mobley, )
Appellant, )
)
v. ) Appeal No. 01980995
) Agency No. DOT-6-97-6112
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On November 10, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by him on October 16,
1997, 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. In his complaint, appellant alleged that he
was subjected to discrimination on the bases of race (Black) and in
reprisal for prior EEO activity. Appellant raised approximately thirty
(30) allegations of discrimination, including allegations that the
agency breached a July 2, 1993 settlement agreement, by reassigning
him from the position he received pursuant to the agreement, Manager,
Facility Operation/Administration Branch ("FOAB Manager"). Additionally,
appellant alleged that, but for the reassignment, the agency failed to
carry out any of the actions specified by the agreement. The agency
accepted for investigation all of appellant's allegations except those
concerning the alleged breach, which the agency dismissed pursuant to 29
C.F.R. �1614.107(a), for stating the same claim that was pending before
or decided by the agency or Commission. Specifically, the agency noted
that by letter dated March 21, 1997, appellant notified the agency that
he was reassigned from the FOAB Manager position, and that the agency
had not complied with any of the other terms of the settlement agreement.
Appellant requested, therefore, that his prior complaint be reinstated.
As the agency had begun processing appellant's breach allegations under
Agency No. DOT 6-97-6061B, it determined that appellant's allegations
of breach in the instant complaint stated the same claim.
On appeal, appellant contends that although both claims arise from his
reassignment from the FOAB Manager position, the instant complaint's
allegation that the reassignment was due to his race and prior EEO
activity is distinct from the allegation of settlement breach he raised
in Agency No. DOT 6-97-6061B. Appellant suggests that because the
cause of actions differ -- Agency No. DOT 6-97-6061B being a contract
breach action and the instant complaint being a discrimination claim --
the claims should not be considered as the same.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same
claim that is pending before or has been decided by the agency or
Commission. In the instant case, we find that appellant's allegations
of settlement breach in conjunction with Agency No. DOT 6-97-6061B,
and those concerning his reassignment from the FOAB Manager position,
and the agency's failure to comply with the other provisions of the
agreement, state the same claim. We first note that the record clearly
establishes that appellant raised the issues of his reassignment and the
agency's failure to abide by the terms of the settlement agreement in
Agency No. DOT 96-97-6061B. Both claims concern the same set of facts,
i.e., appellant's reassignment and the agency's failure to abide by the
terms of the settlement agreement. Based on the foregoing, we find that
the agency's decision to dismiss appellant's allegations concerning his
settlement breach was proper, and, therefore, 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. 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 (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:
November 6, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations