01993595_r
04-13-2001
Barry J. Bernich, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Barry J. Bernich v. Department of the Navy
01993595
April 13, 2001
.
Barry J. Bernich,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01993595
Agency No. 96-65923-040
Hearing No. 140-96-8277X
DECISION
Complainant claimed that he was discriminated against on the basis of
his disability when he was called back to work on June 13, 1995, and
he was required to work outside his medical restrictions. Complainant
also filed an appeal before the Merit Systems Protection Board (MSPB)
on July 27, 1998, with regard to his termination. In that appeal,
complainant raised as an affirmative defense the agency's failure to
accommodate him. On November 25, 1998, the MSPB Administrative Judge
determined that complainant failed to prove his affirmative defense
of disability discrimination. Subsequent to the completion of the
investigation in the instant matter, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The EEOC AJ granted the
agency's Motion to Dismiss, finding that the instant matter had been
litigated before the MSPB. The AJ found that the complaint was moot and
returned the investigative file to the agency. The agency stated that
it was adopting the �AJ's recommendation to dismiss [the] complaint due
to mootness . . .� The Commission finds that complainant raised and
litigated the issue of the agency's alleged failure to accommodate him
in his appeal to the MSPB, and therefore, he is collaterally estopped
from raising the same claim in the instant complaint. Accordingly, the
agency's dismissal of this complaint was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 13, 2001
__________________
Date