01a00568
04-12-2000
Shawn Knight, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Shawn Knight, )
Complainant, )
)
v. ) Appeal No. 01A00568
) Agency No. DOT 6-99-6084
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On October 28, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on October 22,
1999, 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> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint because the same claim raised therein is currently
pending before the agency.
BACKGROUND
The record reflects, that complainant, a former air traffic control
specialist, was denied a transfer through the Internal Placement Program
(IPP). On June 17, 1998, complainant filed formal complaint DOT
6-98-6103, claiming that he was denied a transfer based on his gender
(male). Thereafter, on October 1998, because he was not transferred,
complainant resigned from the Federal Aviation Administration.
Subsequently, an investigation was conducted and complainant discovered
that he was in fact scheduled to be transferred in June 2000.
Believing that he was the victim of discrimination, on April 8,
1999, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that his supervisors intentionally
deceived him when they did not inform him that he was scheduled to be
transferred in June 2000.
Counseling failed, and on July 14, 1999, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination on the bases of his gender (male) and reprisal (prior
EEO activity). The formal complaint was comprised of the matter for
which complainant underwent EEO counseling, discussed above.
On October 22, 1999, the agency issued a final decision dismissing the
present complaint for raising the same claim that is currently pending
before the agency. Specifically, the agency found that the claim in
the present complaint was identical to the claim raised in complaint
DOT 6-98-6103.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
The agency dismissed the present complaint on the grounds that it states
the same claim as that in complaint DOT 6-98-6103, which is pending
before the agency. Complainant contends that the claims differ because
they pertain to different factual allegations. However, the Commission
finds that both claims attack the same purportedly discriminatory
incident, i.e., not transferring complainant. The remedial relief
available to complainant should he prevail on this allegation would
not differ or be enlarged by filing the same allegation more than once.
Accordingly, the agency's decision to dismiss the present complaint was
proper.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint for raising the
same claim that is currently before the agency.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.