05970269
10-08-1998
Reuben R. Rowan, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Reuben R. Rowan v. Department of Transportation
05970269
October 8, 1998
Reuben R. Rowan, )
Appellant, )
) Request No. 05970269
v. ) Appeal No. 01960888
) Agency Nos. 95-0418;
Rodney E. Slater, ) 95-0028
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 21, 1996, Reuben R. Rowan (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Reuben
R. Rowan v. Federico F. Pe�a, Secretary, Department of Transportation
(Federal Aviation Administration), EEOC Appeal No. 01960888 (November
5, 1996). The appellant received the decision on November 23, 1996.
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). A party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following criteria: new
and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); the decision is of such exceptional nature as to
have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons that follow, appellant's request is denied.
The Commission will reconsider the previous decision on its own motion.
ISSUE
The issue before us is whether the agency properly dismissed three
allegations on the grounds that appellant had raised these matters in
his appeal before the Merit Systems Protection Board (MSPB).
BACKGROUND
Appellant sought counseling in March 1993 and filed his formal complaint
on May 16, 1994, alleging discrimination based on race and national origin
(American Indian), sex, and reprisal with regard to (a) a team meeting
in February 1992; (b) denial of leave and placement on AWOL (absent
without leave) status; (c) a reassignment when his security clearance
was suspended; (d) the agency's processing of his OWCP claims; and (e)
his removal in July 1993. The record of counseling contains a form
signed by appellant in March 1993 acknowledging that he was informed of
his rights to pursue a mixed case in the EEO process or before the MSPB,
but not both.
The agency accepted (a), (b), and (c), but remanded (d) and (e) for
counseling. Appellant subsequently sought counseling on these issues
and filed a second formal complaint. The agency accepted the additional
two issues.<1> Thereafter, on October 10, 1995, the agency issued two
FADs, dismissing (b) and (c) (FAD I) and (e) (FAD II) on the grounds
that appellant had raised these issues before the MSPB.<2> Appellant
filed separate appeals, which the Commission docketed as EEOC Appeal
No. 01960888. The previous decision did not address appellant's appeal
of FAD I, i.e., the dismissal of Issues (b) and (c).
Appellant worked as a Flight Data Processor at the Kansas City Air
Route Traffic Control Center until his termination on July 14, 1993.
On July 28, 1993, appellant filed an appeal with the MSPB challenging
his removal and claiming discrimination based on race, sex, national
original, and reprisal. At the start of the hearing, appellant stipulated
to his intent not to address his discrimination claims. In the Initial
Decision (ID) issued on December 2, 1993, the MSPB Administrative Judge
noted that the agency's removal action was based, in part, on appellant's
unexcused absence and failure to report for his reassignment. (ID p. 2).
The MSPB and Court of Appeals for the Federal Circuit sustained the
agency's removal action.
In his appeals, appellant objected to the agency's dismissal of Issues
(b), (c), and (e), contending that, because he withdrew his discrimination
claims before the MSPB, he had a right to proceed in the EEO process.
The previous decision held that the agency properly dismissed the Issue
(e), since appellant was aware of his rights in a mixed case situation and
had elected to proceed before the MSPB. Further, the decision found that,
having alleged discrimination in his MSPB appeal, he made his election
and lost the opportunity to pursue these claims in the EEO process.
In his request for reconsideration (RTR), appellant addresses the
dismissal of all three issues. He argues, for the first time in this
record, that he had filed an EEO complaint on June 30, 1993. The agency
did not file comments in response to the appeal.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument
or evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record, we find that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c). In order
to rectify the failure of the previous decision to address appellant's
appeal of FAD I, the Commission will reconsider the previous decision on
our own motion. Upon reconsideration, we affirm the previous decision,
as modified herein, and affirm the agency's actions dismissing Issues (b),
(c), and (e).
Appeal of FAD I
In FAD I, the agency dismissed Issues (b) and (c), concerning appellant's
placement on AWOL status and his reassignment, respectively. In his
appeal of FAD I, appellant presented the same arguments as in his appeal
of FAD II. While acknowledging that the MSPB hearing encompassed
matters concerning his placement on AWOL status, his reassignment,
and his removal, appellant appears to argue that the MSPB did not
consider the discrimination claims because he withdrew them, and thus
he is entitled to pursue his discrimination claims in the EEO forum.
The record, however, is clear that appellant raised his discrimination
claims in his MSPB appeal and, had he so chose, could have pursued them
in that forum. As the previous decision properly stated, the doctrine
of res judicata holds that once an appellant files an appeal to the
MSPB raising, inter alia, discrimination claims that could have been
pursued in the EEO process, s/he has elected to proceed in that forum,
regardless of the manner in which the appeal is conducted. For the
reasons stated in the previous decision concerning FAD II, we find that
the agency properly dismissed Issues (b) and (c) in FAD I.
Appellant's RTR
In his RTR, appellant contends that he filed an EEO complaint on June
30, 1993, prior to his MSPB appeal. The record shows, however, that
counseling was ongoing at the time, settlement discussions were taking
place, and appellant had not received a notice of final interview (NOFI).
The agency returned the purported complaint to him as premature. Further,
the record shows that appellant did not seek a NOFI until after he filed
his MSPB appeal and had actively refrained from completing counseling
as of August 1993, after his MSPB appeal was filed. There is nothing
in the record to indicate that appellant's putative complaint on June
30, 1993, was a formal complaint within the meaning of our regulations,
and it cannot, in hindsight, be considered an election to proceed in the
EEO forum. Because appellant did not file a formal complaint prior to
his MSPB appeal, we find that he knowlingly elected to proceed before
the MSPB and that the agency properly dismissed Issues (b), (c), and (e).
For the above reasons, the Commission finds that appellant's request
does not meet the regulatory criteria of 29 C.F.R. �1614.407(c)
and denies appellant's request to reconsider the previous decision.
On its own motion, the Commission reconsiders the previous decision.
Upon reconsideration, the previous decision is affirmed, as modified
herein. Because the Commission addresses appellant's appeal of FAD I
for the first time in this decision, the parties are granted rights of
reconsideration as to FAD I, only, i.e., the agency's dismissal of Issues
(b) and (c).
CONCLUSION
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that the appellant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c). The Commission has reconsidered the previous
decision on its own motion. The decision in EEOC Appeal No. 01960888
(November 5, 1996) is AFFIRMED, as MODIFIED, and the agency's final
decisions are AFFIRMED. There is no further right of administrative
appeal with regard to appellant's appeal of FAD II, i.e., the agency's
dismissal of Issue (e). The parties are granted rights of reconsideration
as to FAD I, only, i.e., the agency's dismissal of Issues (b) and (c).
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RECONSIDERATION (M0795)
With regard to the finding herein that the agency properly dismissed
Issues (b) and (c) (FAD I), only, 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. �l6l4.604(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. 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 (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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The agency identified the first complaint containing Issues (a), (b),
and (c) as No. 95-0028 (hereinafter Complaint 1) and the second complaint
comprising Issues (d) and (e) as No. 95-0418 (Complaint 2).
2In the FADs, the agency stated that it would continue to process Issues
(a) and (d).