01A01930
02-13-2001
Willie T. Herring, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Willie T. Herring v. Department of the Navy
01A01930
February 13, 2001
.
Willie T. Herring,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A01930
Agency No. DON-99-60201-009
DECISION
The Commission finds that the agency's December 6, 1999 decision
dismissing complainant's complaint was proper pursuant to EEOC
Regulations.
Complainant filed an appeal with this Commission from an agency decision
dismissing his complaint of unlawful employment discrimination.<1>
Specifically, complainant claimed that the agency breached a settlement
agreement into which the parties entered, related to an appeal that
he filed with the Merit Systems Protection Board (MSPB) regarding his
application for disability retirement.
The record in this case reflects that complainant filed a petition
with the MSPB wherein he sought enforcement of the June 16, 1998
agreement between the parties. By initial decision dated March 24,
2000, the Board denied complainant's petition for enforcement (MSPB
Docket No. AT-0752-97-0944-C-1). The Board determined that the agency
had not breached the settlement agreement. The Board's March 24, 2000
decision also stated the following:
�the Board retains jurisdiction for the limited purpose of considering
any enforcement or compliance issues that may arise under the settlement
agreement.�
In its final decision, the agency dismissed the instant complaint on
the grounds that complainant had filed an appeal with the MSPB on the
same matter. Complainant offers no arguments on appeal.
EEOC Regulation 29 C.F.R. � 1614.302(b) provides that �an aggrieved
person may initially file a mixed case complaint with an agency pursuant
to this part or an appeal on the same matter with the MSPB pursuant to
5 C.F.R. �1201.151, but not both.� This section further provides that
whichever is filed first shall be considered an election to proceed
in that forum.� Finally, EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
provides that an agency shall dismiss a complaint or portion of a
complaint where the complainant has raised the matter in �an appeal to
the Merit Systems Protection Board and �1614.301 or �1614.302 indicates
that the complainant has elected to pursue the non-EEO process.�
Based on the foregoing, we find that because an MSPB settlement agreement
was reached by the parties, complainant elected to proceed in that forum.
Moreover, the MSPB decision specifically indicates that it retained
jurisdiction over issues involving the agreement entered into by the
parties.
Accordingly we find that the agency's decision dismissing complainant's
complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(4) was
proper and is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
__________________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 13, 2001
___________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulation 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.