0120114005
12-20-2012
Diane S. Roy, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Diane S. Roy,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120114005
Agency No. OCFO200901282
DISMISSAL
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 2, 2011, concerning its compliance with a settlement agreement dated October 16, 2009.
The settlement agreement in question herein provided, in pertinent part, that the Agency would provide Complainant with priority consideration for the next referred Program Analyst GS-0343-7/9/11 position, within the Controller Operations Division, for which Complainant qualified.
On February 18, 2010, Complainant sent the Commission a letter alleging non-compliance with the settlement agreement. Complainant asserted that the Agency provided her with a one-time interview, and believed she was entitled to more. The matter was docketed as Appeal No. 0120101395. In response to the appeal, the Agency sent the Commission a letter giving arguments as to why it was in compliance with the agreement. We viewed the Agency's response of September 22, 2010, as a final decision on the matter. Thereafter, on June 6, 2011, we issued a decision on the matter, finding that the agreement did not provide for multiple opportunities for priority consideration, or guarantee that Complainant would be selected. The decision found there was no breach of the agreement.
On August 11, 2011, the Agency issued a decision regarding the same matter. The Agency's decision addressed the same breach claims that had been already adjudicated in Appeal No. 0120101395.
It is not clear why the Agency chose to issue a new decision on a matter that had been already been ruled upon. We note that the Agency's August 11, 2011 decision far exceeds any time lines for addressing the breach allegation from a Complainant. Because the matter has already been adjudicated by the Commission, we find that the instant appeal is barred by the doctrine of res judicata.
Accordingly, the instant appeal is DISMISSED,
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 20, 2012
__________________
Date
2
0120114005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114005