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.