01973223
12-23-1999
Gregory A. Duncan, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Gregory A. Duncan,<1> )
Complainant, )
)
v. ) Appeal No. 01973223
) Agency No. 95-0357
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DISMISSAL
Complainant filed the instant appeal from a decision issued by the agency
on May 26, 1995.<2>
The Commission issued a decision in White v. Department of Transportation,
EEOC Appeal No. 01954954 (July 31, 1996), finding that the agency
properly dismissed (in a decision dated May 26, 1995) complainant's EEO
complaint<3> on the grounds that complainant had elected to pursue a
portion of the complaint in the negotiated grievance procedure and on
the grounds that the remaining portion of the complaint failed to state
a claim. The decision in White, EEOC Appeal No. 01954954, concerned
an appeal filed by the instant complainant. See footnote 1. In the
instant appeal, complainant argues that the agency incorrectly dismissed
his EEO complaint. The Commission finds that complainant's appeal of
the agency's dismissal of his EEO complaint has already been decided by
the Commission in White, EEOC Appeal No. 01954954, and that the instant
appeal is barred by the doctrine of res judicata. The instant appeal
is not a request to reconsider the Commission's previous decision in
EEOC Appeal No. 01954954. The instant appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
Dec. 23, 1999
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
1Complainant formerly used the name Gregory A. White.
2On 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.
3Defined by the agency as alleging that complainant was denied health
benefits for his dependent children; complainant was falsely accused
of submitting a falsified birth certificate to defraud the government
and such charges were upheld contrary to the evidence presented in the
grievance procedure; complainant's request for information to defend
such charges were denied or its receipt delayed; the agency violated
complainant's privacy; and the EEO staff mistated complaint's reason
for filing his claim of discrimination.