Steven D. Hosey, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01982003 (E.E.O.C. Apr. 13, 1999)

01982003

04-13-1999

Steven D. Hosey, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Steven D. Hosey v. Department of Transportation

01982003

April 13, 1999

Steven D. Hosey, )

Appellant, )

)

v. ) Appeal No. 01982003

) Agency No. 2972003

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On December 18, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated November 26, 1997, pertaining

to his complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq. In his complaint, appellant alleged that he was subjected to

discrimination in reprisal for prior EEO activity when in November 1995,

agency officials provided numerous false statements concerning his job

performance while an Interstate Commerce Commission employee to an Office

of Personnel Management (OPM) background investigator who was conducting

a security clearance check on appellant for a conditional permanent job

offer he received at the U.S. Arms Control and Disarmament Agency.

On October 21, 1996, the agency issued a FAD dismissing the instant

complaint for untimely EEO Counselor contact. Appellant appealed, and

on October 10, 1997, the Commission vacated the agency's decision and

issued an Order instructing the agency to determine when appellant first

suspected discrimination. EEOC Appeal No. 01971045. Pursuant to EEOC

Regulations 29 C.F.R. ��1614.107(c) and (d), the agency again dismissed

appellant's complaint, concluding that appellant raised the subject

matter of the instant complaint both in an appeal he filed before the

Merit Systems Protection Board (MSPB) in Docket Nos. DC-0351-95-0097-X-1

and DC-1221-95-0152-X-1, and, subsequently, before the United States

Court of Appeals for the Federal Circuit, in Docket No. 97-3385.

On appeal, appellant acknowledges that the instant matter concerns the

same OPM investigation that was the subject of both the MSPB appeal and

subsequent appeal to the U.S. Court of Appeals; however, he asserts that

the instant complaint concerns the accuracy of the information provided

to the OPM investigator, whereas the other forums examined the release

of information to the OPM investigator within the context of an alleged

violation of a March 25, 1995 MSPB settlement agreement entered into

by the parties. As neither of the other forums investigated the issue

of whether the statements released to the OPM investigator were false,

appellant argues that the instant complaint is distinct, and, therefore,

that the agency's dismissal pursuant to 29 C.F.R. ��1614.107(c) and (d)

was improper.

In response, the agency asserts that the issues raised in the instant

complaint are identical to those raised before the MSPB and U.S. Court of

Appeals. The agency contends that the truth or falsity of the information

released to the OPM investigator is not really the subject of the instant

EEO complaint. Instead, the subject of the EEO complaint is whether

the agency's disclosures, notwithstanding their truth or falsity, were

motivated by reprisal. The agency further contends that this issue,

i.e., whether the agency was justified in making the disclosures,

was already adjudicated by the MSPB and the U.S. Court of Appeals in

appellant's enforcement proceedings.

EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency may

dismiss a complaint, or portion thereof, where the complainant has raised

the matter in an appeal to the MSPB. In the instant case, we are not

persuaded by appellant's attempts to distinguish the issues alleged in

his EEO complaint with those raised before the MSPB. The Commission

finds that the gravamen of appellant's EEO complaint concerns whether the

agency retaliated against him for his prior EEO activity when it released

information (regardless of its truthfulness) to the OPM investigator.

A review of the record discloses that this issue was raised and addressed

by the MSPB in response to appellant's appeal. Commission regulations

mandate dismissal of the EEO complaint under these circumstances so

as to prevent a complainant from simultaneously pursuing two different

administrative remedies on the same matters, thereby wasting resources

and creating the potential for inconsistent or conflicting decisions.

Accordingly, the agency's decision to dismiss appellant's complaint

pursuant to 29 C.F.R. �1614.107(c) was proper and is AFFIRMED for the

reasons set forth herein.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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. �1614.604(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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

April 13, 1999

____________________________

DATE Ronnie Blumenthal, Director

1Since we are affirming the agency's dismissal of appellant's complaint on

the grounds that it was the subject of an MSPB appeal, we will not address

the agency's alternative grounds for dismissal.