Wayne Trader, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01985020 (E.E.O.C. Sep. 7, 1999)

01985020

09-07-1999

Wayne Trader, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Wayne Trader v. Department of Defense

01985020

September 7, 1999

Wayne Trader, )

Appellant, )

)

v. ) Appeal No. 01985020

) Agency No. TA97027

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

______________________________)

DECISION

On June 13, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated May 14, 1998, 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.

The Commission accepts appellant's appeal in accordance with EEOC Order

No. 960, as amended.

In his complaint, appellant alleged that he was subjected to

discrimination on the bases of race (African American), color (black),

and in reprisal for a previous EEO complaint when:

1. Management reassigned appellant on or about May 11, 1997, from OSCI

to OSMA;

2. Management deprived appellant of career advancement;

3. Management deprived appellant of training (which appellant alleges

was canceled the last week of February 1997); and

4. Management violated appellant's U.S. District Court Settlement by

reassigning appellant from OSCI to OSMA on or about May 11, 1997.

The agency accepted allegation 1 for investigation; allegation 2 was

dismissed for failure to state a claim; allegation 3 was dismissed for

untimely EEO contact, and for stating the same claim that was pending

before or had been decided by the agency or Commission; and allegation 4

was dismissed for lack of jurisdiction. With regard to allegation 2, the

agency, specifically, noted that appellant was promoted in accordance

with his career ladder track to a Computer Specialist, GS-334-07

(step 5) effective August 3, 1997, and appellant had not identified

an adverse action in reference to his career advancement that caused

him to be aggrieved. Concerning allegation 3, the agency found that

appellant raised the same allegation in a prior EEO complaint, TA-97-013.

Also, the agency found that appellant's initial EEO contact was June

11, 1997, and therefore, allegation 3 occurring in February 1997, was

not timely. The agency noted that allegation 4 failed to state a claim

because breaches of court settlements could not be resolved within the

EEO administrative process.

The record indicates appellant filed a prior complaint (Agency #

TA-97-013) on April 10, 1997. In that complaint, appellant alleged that

Management canceled his training for the period from February 1997 to

September 1997.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

As to allegation 2, appellant generally alleges agency action which has

stifled his federal career. However, appellant has failed to identify in

this allegation, a specific, adverse agency action which has deprived him

of career advancement. Thus, the agency's dismissal of this allegation

is proper.

As to allegation 4, appellant entered a settlement agreement, while

in the U.S. District Court; therefore, appellant pursue any alleged

breach through the Court. The Commission's EEO administrative process,

regulated by 29 C.F.R. �1614 does not have jurisdiction over settlement

agreements made in U.S. District Court.

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.

As to allegation 3, appellant filed the same claim in his prior EEO

complaint, TA-97-013. Thus, the agency properly dismissed this allegation

for stating the same claim as a prior complaint.<1>

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's partial

dismissal of appellant's complaint.

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:

Sept. 7, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Since we are affirming the agency's dismissal of allegation 3 pursuant

to 29 C.F.R. �1614.107(a), we will not address the agency's alternative

grounds for dismissal, i.e., that appellant failed to make timely EEO

contact.