Frank M. Billue, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJun 29, 2001
01A04624_r (E.E.O.C. Jun. 29, 2001)

01A04624_r

06-29-2001

Frank M. Billue, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Frank M. Billue v. Department of Transportation

01A04624

June 29, 2001

.

Frank M. Billue,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A04624

Agency No. DOT-3-00-3016

DECISION

Upon review, the Commission finds that the complaint was properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant claimed

that he had been discriminated against on the bases of race, sex, and

in reprisal for prior protected activity when the director of the Office

of Human Resources knowingly and willingly delayed the processing of the

personnel action to upgrade complainant's position for more than a year.

This action was delayed after a desk audit was performed on August 30,

1999, that determined that the position was properly classified as an

Equal Opportunity Specialist, GS-360-13 on September 22, 1999.

The agency dismissed the complaint after finding that it raised an issued

already decided by the agency or the Commission. Specifically, the agency

found that in Agency Case No. DOT-3-99-3036, complainant claimed that he

had been discriminated against on the basis of race when in November 1998,

his supervisor did not upgrade his position from a GS-13 to a GS-14.

The agency further found that it had accepted and implemented the

Administrative Judge's recommended finding of no discrimination.

The Commission finds that the complaint was properly dismissed because

the desk audit of complainant's position and the classification of his

position as a GS-13 were issues that were previously decided by the

agency in Agency Case No. DOT-3-99-3036. Accordingly, the agency's

final decision dismissing the complaint is AFFIRMED.

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

June 29, 2001

__________________

Date