01a01795
06-16-2000
John E. Sanders, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation Agency.
John E. Sanders, )
Complainant, )
)
v. ) Appeal No. 01A01795
) Agency No. DOT 3993104
Rodney E. Slater, )
Secretary, )
Department of Transportation )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated November 17,
1999, which dismissed complainant's complaint for stating the same
claim that has been decided by the agency, is proper pursuant to 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)).<1> In his complaint, complainant alleged
that the agency discriminated against him when the agency paid fellow
supervisors higher pay despite his seniority and performance.
The agency found and complainant acknowledged in his letter on appeal
that he filed another complaint (DOT 3993125) regarding his and other
supervisors' pay increases in relation to their seniority. On October
15, 1999, the agency dismissed DOT 3993125 pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim and asserting a generalized
grievance. In the present case, the agency found that complainant had
stated the same claim in the prior complaint.
To be dismissed as the "same claim," the present and prior complaints must
involve identical matters. It has long been established that "identical"
does not mean "similar." The Commission has consistently held that in
order for a complaint to be dismissed as identical, the elements of the
complaint must be identical to the elements of the prior complaint in
time, place, incident, and parties. See Terhune v. USPS, EEOC Request
No. 05950907 (July 18, 1997). After a careful review of the record,
we find that complainant's present complaint states the same claim as
DOT 3993125. Both complaints address pay discrepancies between the
agency's other supervisors and complainant. Therefore, the agency's
decision is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.