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.