Charles R. Goodwine, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01990479 (E.E.O.C. Feb. 10, 2000)

01990479

02-10-2000

Charles R. Goodwine, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Charles R. Goodwine, )

Complainant, )

)

v. ) Appeal No. 01990479

) Agency No. 97-1462

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Based on a review of the record, we find that the agency improperly

dismissed complainant's complaint for having raised the same claims

previously raised and for mootness.<1> See 64 Fed. Reg. 37,656

(1999) (hereinafter referred to and to be codified as, respectively,

29 C.F.R. �� 1614.107(a)(1) and 1614.107(a)(5)). We are not persuaded

by the agency's arguments in response to complainant's timely appeal of

October 20, 1998, from the agency's September 29, 1998 final decision

(FAD), to the contrary.

The agency determined that complainant's complaint is comprised of

two claims: issuance of an unfair rating on KSAOs for a pending job

application on April 7, 1997; and receipt of a letter of admonishment

relating to time and attendance, on March 10, 1997. The agency dismissed

the claim regarding the unfair rating, on the grounds that it was

raised in a prior complaint. The claim regarding the admonishment was

dismissed on the grounds of mootness. The Commission finds, however,

that the agency has not met its burden of providing sufficient evidence

in support of its FAD. See Henry v. United States Postal Service,

EEOC Request No. 05940897 (May 10, 1995).

The Commission finds, for example, in the present case, that the agency

has not provided the Commission with a copy of the prior complaint

(hereinafter Complaint-1, or C-1) under agency case number 97-1721

purportedly filed by complainant, containing his claim that, for

prohibited reasons, his supervisor, on April 7, 1997, gave him an unfair

rating on KSAOs for a pending job application. In the absence of C-1, we

are not persuaded by the agency's submission of the EEO Investigator's

�Investigative Summary and Analysis� (�the ISA�) pertaining to C-1,

to support the FAD in the present case. The Commission finds the ISA

both unreliable and not credible for the purposes of the decision in

the present case. In this regard, we find the ISA improperly rendered

a conclusion that complainant in C-1 had failed to demonstrate that

the agency had discriminated against him. We further find the ISA's

recommendation of �a finding of no discrimination� contrary to the

need for EEO personnel, including investigators, to be neutral and

impartial. See, e.g., the Commission's revised EEO Management Directive

(EEO-MD-110) for 29 C.F.R. Part 1614 (November 9, 1999), Ch. 6, � VI (C)

(�Investigator Must Be Unbiased and Objective�).<2>

The Commission also finds no support, in the present case, for the FAD's

determination that the agency had decided C-1 �and [complainant has]

appealed that decision to the [Commission].� A search of Commission

records reveals no decision was issued with regard to C-1, and the

agency record in the present case did not contain a copy of the agency's

purported decision on C-1.

Further, the Commission finds that, in his present complaint, complainant

indicated that he had also filed a grievance on the issues raised in

his present complaint. If complainant's assertion is accurate, then

his complaint may be subject to dismissal for having previously raised

the same issues in a negotiated grievance, under a negotiated grievance

process that permits claims of discrimination to be raised in either a

grievance or in an EEO complaint but not in both. See 64 Fed. Reg. 37,656

(1999) (hereinafter referred to and codified as 29 C.F.R. � 1614.107(a)(4)

(pertaining to dismissal)); and 29 C.F.R. � 1614.301(a).

Having reviewed the entire record in the present matter, the arguments

on appeal, including those not expressly addressed herein, and for the

foregoing reasons, the Commission hereby VACATES the FAD's dismissal of

complainant's complaint.<3> The parties are advised that this decision

is not a decision on the merits of complainant's complaint in this case.

The agency shall comply with the Commission's ORDER as set forth below.

ORDER

The agency is hereby ORDERED to take the following actions:

1. The agency shall conduct a supplemental investigation and provide the

Commission and complainant with true, complete and legible copies of the

EEO Counselor's report, formal complaint, and final agency decision in

agency case number 97-1721.

2. The agency shall also provide the Commission and complainant with

evidence as to whether complainant filed a grievance on the same issues

as in the present case prior to his filing his instant formal complaint.

If such a grievance was filed, the agency shall determine whether there

existed, at the time of the filing of the grievance, a collective

bargaining agreement (CBA) that permitted the raising of claims of

discrimination. In that event, the agency shall provide the Commission

and complainant with true, complete and legible copies of relevant

portions of the CBA (including evidence of the date the grievance was

filed), and any decisions on the grievance.

3. Thereafter, the agency shall issue a report of supplemental

investigation and a letter to complainant accepting his instant complaint

for processing. Alternatively, the agency shall issue a new final

decision (FAD) with appeal rights to the Commission. The new FAD shall

provide the legal grounds and factual bases of dismissal, as well as

any documents relied on. All Ordered actions, including the report of

supplemental investigation, letter of acceptance, or new FAD, shall be

completed within sixty (60) calendar days from the date the Commission's

decision becomes final in this case.

4. The agency shall send copies of all Ordered transmittals to

complainant, as well as to the Commission's Compliance Officer, as set

forth below. The agency is advised that its failure to comply with this

Order may result in the imposition of sanctions. See 64 Fed. Reg. 37,656

(1999) (hereinafter referred to and codified as 29 C.F.R. � 1614.108,

in relevant parts).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

February 10, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2The Commission's decision in the present matter should not be construed

as a determination of the merits of Complaint-1. That complaint is not

before us and will not be addressed herein,

3In light of the Commission's decision in the present matter, we need not

entertain the question of mootness at this time. The Commission expects

the agency to address the question of mootness, again, as part of its

compliance with the Commission's Order in this case.