Leonard A. Mobley, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionDec 11, 2001
05990229_r (E.E.O.C. Dec. 11, 2001)

05990229_r

12-11-2001

Leonard A. Mobley, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Leonard A. Mobley v. Department of Transportation

05990229

December 11, 2001

.

Leonard A. Mobley,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Request No. 05990229

Appeal No. 01980995

Agency No. DOT-6-97-6112

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Leonard

A. Mobley v. Department of Transportation, EEOC Appeal No. 01980995

(November 6, 1998). EEOC Regulations provide that the Commission may,

in its discretion, reconsider any previous Commission decision where

the requesting party demonstrates 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.

See 29 C.F.R. � 1614.405(b).

According to the record, the parties executed a settlement agreement on

July 2, 1993, which provided, in pertinent part, that the agency was to

place complainant in a certain position. On March 21, 1997, complainant

claimed breach due to his reassignment to another position, as well as

the agency's failure to comply with all other terms of the agreement.

On September 8, 1997, complainant filed a separate formal complaint

which is the subject of the previous decision, alleging discrimination

on the bases of race and in reprisal for prior protected activity,

which set forth numerous claims, including the reassignment/breach claim.

The agency accepted the complaint for investigation, except for the breach

claim, which it dismissed on the grounds that the same claim had been

raised in the context of complainant's previously filed breach claim.

See 29 C.F.R. � 1614.107(a)(1).

On appeal, complainant acknowledged that the breach claim and the

discrimination claim were both predicated on the reassignment; however,

complainant argued they are nonetheless separate actionable claims because

they are based on different causes of action. The Commission rejected

this argument finding that both claims address the same matter regardless

of the cause of action asserted, and affirmed the agency's dismissal.

In his request for reconsideration, complainant continues to argue

that his breach claim and his discrimination complaint concerning the

reassignment are separate claims, and requests that the Commission

reverse its decision to affirm the agency's dismissal.

According to Commission records, the agency denied complainant's breach

claim, and complainant filed an appeal from that determination with

the Commission. In Mobley v. Department of Transportation, EEOC Appeal

No. 01986729 (February 15, 2000), the Commission reversed the agency's

determination that it had complied with the settlement agreement.<1> In

reaching this determination, the Commission observed that a provision in

a settlement agreement requiring an agency to assign a complainant to a

certain position does not forever bind the agency to keep the complainant

in that position. See Elliott v. U.S. Postal Service, EEOC Request

No. 05950615 (Decemer 13, 1995). Nonetheless, the Commission determined

that the reassignment in the instant case did constitute a breach because

another provision (provision 6) of the settlement agreement provided

that in the event that the agency rescinded any action specified by the

settlement agreement, for reasons not attributable to complainant,

his underlying complaint must be reinstated upon complainant's

written request. Finding that the reassignment was not attributable

to complainant's conduct, and his complaint was not reinstated upon his

written request, the Commission found breach of the settlement agreement

and ordered reinstatement of the underlying complaint.

After a review of the complainant's request for reconsideration,

the previous decision, and the entire record, and for the reasons

set forth above, the Commission finds that the request fails to meet

the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the

Commission to deny the request. The decision in EEOC Appeal No. 01980995

remains the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

December 11, 2001

__________________

Date

1In his request for reconsideration, complainant argues that the

Commission acted improperly by affirming the dismissal of the reassignment

claim because the agency dismissed his breach claim based on untimeliness,

thereby precluding a merits adjudication of the reassignment claim under

either action. However, as set forth herein, on appeal, the Commission

reversed the agency's �dismissal� of the breach claim, and reinstated

the underlying complaint.