01A22751
10-09-2002
Bruce E. Reinhart, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Bruce E. Reinhart v. Department of Veterans Affairs
01A22751
October 9, 2002
.
Bruce E. Reinhart,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22751
Agency No. 98-3298
Hearing No. 250-A0-8350x
Complainant filed a timely appeal with this Commission from the final
agency action dated March 21, 2001, implementing the EEOC Administrative
Judge's (AJ) decision dismissing his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of disability and in
reprisal for prior protected activity when:
On June 29, 1998, he met with an agency official who threatened to
abolish his job as Human Resource Officer; and
The agency has not complied with a June 16, 1998 agreement between
the parties.
The agency accepted complainant's complaint for investigation, and at the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On March 5, 2002, the AJ issued a
decision without a hearing dismissing complainant's complaint pursuant
to 29 C.F.R. � 1614.107(a)(3), finding that it is the basis of a pending
civil action. Specifically, the agency concluded that she no longer had
jurisdiction over the matter because the complainant is seeking relief
in Federal Court for his claims of employment discrimination.
On March 21, 2002, the agency issued a final action fully implementing
the AJ's decision pursuant to EEOC Regulation 29 C.F.R. � 1614.110(a).
The regulation found at 29 C.F.R. � 1614.409 provides that the filing of
a civil action "shall terminate Commission processing of the appeal. EEOC
Regulation 29 C.F.R. � 1614.107(a)(3) further provides that the agency
shall dismiss an entire complaint that is the basis of a civil action
decided in a United States District Court in which the complainant is
a party.
The record indicates that complainant filed a civil action (identified
as Civil Action No. 3-99-1079) in the United States District Court for
the Middle District of Tennessee, Nashville Division. The record further
discloses that the claims raised therein are the same as those raised in
the instant complaint. Commission regulations mandate dismissal of the
EEO complaint under these circumstances so as to prevent a complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, and creating the potential
for inconsistent or conflicting decisions, and in order to grant due
deference to the authority of the federal district court. See Stromgren
v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7,
1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (October
19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October 25, 1988).
Accordingly, complainant's appeal is hereby dismissed. See 29 C.F.R. �
1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 9, 2002
__________________
Date