0120093690
02-25-2010
Willie L. Weaver, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Willie L. Weaver,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120093690
Agency No. 200922829FAA03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 17, 2009, dismissing his complaint of unlawful
employment discrimination alleging a violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity when:
1. he was demoted from Supervisory Aviation Safety Administrator to
Aviation Safety Inspector; and
2. was relocated from Fort Lauderdale, Florida to College Park, Georgia.
By notice dated April 29, 2005, the agency proposed to demote complainant
from his position of Supervisory Aviation Safety Inspector, FV-1825-K at
the Fort Lauderdale Flight Stands District Office in Fort Lauderdale,
Florida, to the position of Aviation Safety Inspector (Operations),
FV-1825-J, in the Air Safety Regulations Branch in College Park,
Georgia.
In a November 9, 2005, settlement agreement, the parties agreed that
instead of the above, the following would occur: complainant (1) would
be suspended for 30 days effective January 8, 2006, for the reasons and
specifications in the above notice, (2) be demoted with pay retention
through the date of his retirement, (3) would retire on or before January
3, 2009, and (4) would be reassigned to the Flight Standards Southern
Regional Headquarters, but remotely sited in the Miami-Fort Lauderdale
Metropolitan area.
When January 3, 2009, came to pass, complainant declined to retire.
By letter dated January 22, 2009, the agency sustained the April 25,
2009, proposed removal. The demotion was effective January 8, 2006.
Complainant was advised that his pay would be recalculated to reflect his
accurate salary as a result of the demotion, and he would be responsible
for any resulting indebtedness. Complainant was notified that since his
position was now in College Park, Georgia, he was expected to relocate
there effective March 1, 2009.1 In the letter, the agency advised
complainant of various rights. These included his right to elect to
appeal the decision to the Merit Systems Protection Board (MSPB) or file
a complaint of employment discrimination, but not both.
On or about February 23, 2009, complainant filed an appeal with the MSPB
challenging the January 22, 2009, decision to demote him. He asked
that he remain as a Supervisory Aviation Safety Inspector at the Fort
Lauderdale Fights Standards District Office in Fort Lauderdale, Florida.
Thereafter, on July 24, 2009, complainant filed an EEO complaint alleging
he was discriminated against based on reprisal for EEO activity when he
was demoted and directed to relocate.
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) requires the dismissal of an
EEO complaint where the complainant has filed an appeal with the Merit
Systems Protection Board (MSPB) and 29 C.F.R. � 1614.302 indicates that
the complainant elected to pursue the non-EEO process. The FAD dismissed
the complaint on the grounds that complainant elected to file an appeal
with the MSPB on the same matter.
Complainant makes no comment on appeal. We find that complaint elected,
under the above regulations, to pursue the MSPB process. He was advised
of his election rights in the January 22, 2009 letter which demoted him
from his position in Fort Lauderdale, Florida to a position in College
Park, Georgia. Complainant chose to file an appeal with the MSPB.
On April 14, 2009, the MSPB issued an initial decision dismissing the
appeal. It found that complainant withdrew his appeal with prejudice.
The Commission has held that once a complainant elects to proceed in
the MSPB forum, the withdrawal of his appeal does not negate his prior
election. See Hammond v. General Services Administration, EEOC Request
No. 05940428 (August 25, 1994); Doolittle v. United States Postal Service,
EEOC Appeal No. 0120081329 (March 12, 2009).
We note that the record contains two civil actions filed by complainant
in the United States District Court for the Southern District of Florida.
The first, 0:09-cv-60161 was filed on January 29, 2009, and the second,
0:09-cv-61425, was filed on September 9, 2009. The first alleged
that agency breached the settlement agreement; and retaliated against
complainant when it demoted him and ordered his relocation. The second
alleged retaliation when complainant was demoted and ordered to relocate,
and referred to the agency's August 17, 2009, decision dismissing his
complaint for electing to pursue the MSPB process. We take administrative
notice that on March 26, 2009, the court dismissed the first civil
action without prejudice, and on December 14, 2009, it dismissed the
second without prejudice. As these civil actions were dismissed without
prejudice, they do not terminate the administrative process under 29
C.F.R. � 1614.409.
The agency's decision to dismiss complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 25, 2010
__________________
Date
1 For personal hardship reasons, complainant asked that his change in
duty station be delayed. The agency agreed to delay the change in duty
station until August 31, 2009. In August 2009 complainant asked for a
second delay, but it was not granted.
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0120093690
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093690