01994424
10-28-1999
Charles D. Kendricks, Appellant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Charles D. Kendricks v. Department of Veterans Affairs
01994424
October 28, 1999
Charles D. Kendricks, )
Appellant, )
)
)
)
Togo D. West, Jr., ) Appeal No. 01994424
Secretary, ) Agency No. 97-0723
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination, in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The FAD was issued on February 9,
1999. The appeal was postmarked May 7, 1999. The agency was unable to
supply a copy of a certified mail return receipt or any other material
capable of establishing the date appellant received the agency's final
decision. Accordingly, since the agency failed to submit evidence of
the date of receipt, the Commission presumes that appellant's appeal was
filed within thirty (30) days of receipt of the agency's final decision.
See, 29 C.F.R. �1614.402.
The record indicates that on February 20, 1996 appellant contacted an
EEO Counselor alleging that he had been subjected to discrimination when:
(1) he was not allowed to work with White co-workers, and was assigned
to work alone while others worked in teams;
(2) the agency allowed him to be criticized, belittled and subjected to
racial remarks by co-workers;
(3) he was not allowed to complete the apprenticeship program;
(4) the agency condoned and allowed his co-workers to treat him with
disrespect;
(5) the agency allowed co-workers to meet and discuss what was to be
done about appellant;
(6) the agency refused to hire other Black employees; and
(7) on October 4, 1996 he was removed from the agency.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on April 1, 1996, appellant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of race (Black), disability (unspecified) and reprisal
(prior EEO activity).
In the agency's February 9, 1999 FAD<1>, it accepted for investigation
allegations (1), (3), (5) and (6) of appellant's complaint, but dismissed
allegations (2), (4) and (7) on the grounds that the matters raised
therein were the subject of a grievance filed by appellant. The agency
determined that allegations (2), (4) and (7) were properly dismissed
pursuant to EEOC Regulation 29 C.F.R. �1614.107(d).
EEOC Regulation 29 C.F.R. �1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. �7121(d) and is covered
by a collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part
1614 or the negotiated grievance procedure, but not both. An aggrieved
employee who files a grievance with an agency whose negotiated agreement
permits the acceptance of grievances which allege discrimination may not
thereafter file a complaint on the same matter under 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
A copy of the National Agreement between appellant's union and the
agency is not in the record. The agency dismissed allegations (2), (4)
and (7) on the grounds that appellant had raised them in a grievance.
The Commission finds, however, that there is no evidence of record to show
whether the National Agreement provides for allegations of discrimination
to be raised in the grievance process. In addition, the record does not
indicate the date appellant filed a grievance on the matters at issue,
and the Commission is therefore unable to determine which proceeding was
initiated first by appellant. Clearly, it is the burden of the agency
to have evidence or proof to support is final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
We find therefore, that the agency's decision dismissing allegations (2),
(4) and (7) was improper.
Accordingly, the agency's decision to dismiss allegations (2), (4)
and (7) of appellant's complaint was improper and is hereby REVERSED.
The allegations are REMANDED to the agency for processing in accordance
with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
10/28/1999
DATE Carlton M. Hadden, Acting Director
1 The record indicates that the instant complaint initially came before the
Commission in the matter of Kendricks v. Department of Veterans Affairs,
EEOC Appeal No. 01980633 (September 3, 1998). Therein, the Commission
remanded appellant's complaint to the agency for processing, thereby
reversing the agency's September 23, 1997 decision that appellant had
failed to cooperate in the processing of his complaint.