Brenda F. Jones, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a02564 (E.E.O.C. Jul. 19, 2000)

01a02564

07-19-2000

Brenda F. Jones, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Brenda F. Jones v. Department of Veterans Affairs

01A02564

July 19, 2000

.

Brenda F. Jones,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A02564

Agency No. 99-3115

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated January 12, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> We accept the

appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

After unsuccessful EEO counseling, complainant filed a formal complaint

on July 1, 1999, claiming that she was discriminated against on the bases

of race and sex when the agency denied her back pay for the period of

April 27, 1997 to April 6, 1999. The record reflects that complainant

was indefinitely suspended during this period.

The agency dismissed the complaint finding that complainant had previously

filed an appeal with the Merit System Protection Board (MSPB) (MSPB

Docket No. AT-0752-99-0624-I-1) regarding the suspension, and that the

back pay issue was inextricably intertwined with the suspension issue.

Complainant makes no statement on appeal. In response, the agency

repeats its argument that the suspension and back pay claims are

inextricably intertwined, further noting that the MSPB dismissed the

appeal for untimely filing because complainant was unable to justify

the delay.

Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.302(b)) provides that

an aggrieved person may initially file a mixed case complaint with the

agency or an appeal on the same matter with the MSPB, but not both.

This section further provides that if an individual files both a mixed

case complaint and an appeal on the same matter, whichever is filed first

shall be considered an election to proceed in that forum. Volume 64

fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited

as 29 C.F.R. � 1614.107(a)(4)) provides, in part, that an agency may

dismiss a complaint where the complainant has raised the same matter in

an appeal to the MSPB.

After careful review, we agree with the agency that the indefinite

suspension and the back pay claims are inextricably intertwined because a

determination as to entitlement to back pay cannot be reached unless the

legitimacy of the suspension is first decided. Furthermore, the record

is clear that complainant had notice of her MSPB election rights, and

filed her appeal with the MSPB on June 14, 1999, seventeen days before

filing her EEO complaint, thereby electing to proceed in that forum.

Accordingly, we find that the agency properly dismissed the instant

complaint, and we AFFIRM the agency's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 19, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.