01983575
12-14-1999
Craven L. Glenn, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Craven L. Glenn, )
Complainant, )
)
v. ) Appeal No. 01983575
) Agency No. NIEHS-97-0010
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD), dated February 10, 1998, dismissing his complaint on the
grounds that he had first raised the matter in an appeal to the Merit
Systems Protection Board (MSPB).<1> The Commission accepts the appeal
in accordance with EEOC Order No. 960, as amended.
A review of the record reveals that complainant initially contacted the
EEO office on May 13, 1997. Informal efforts to resolve complainant's
concerns were unsuccessful and, on September 29, 1997 complainant
was issued a �Notice of Right to File a Discrimination Complaint.�
Subsequently, complaint filed a formal EEO complaint alleging
discrimination based on race (Black) and disability (alcoholism) when
on March 28, 1997 he was removed from his position as a Motor Vehicle
Operator, WG-07, National Institute of Environmental Health Sciences.
The record further shows that complainant filed an appeal with the MSPB
from an agency decision removing him from his position as a WG-07 Motor
Vehicle Operator.
Complainant provides no new contentions on appeal.
EEOC Regulation 29 C.F.R. �1614.302(b) provides that "an aggrieved person
may initially file a mixed case complaint with an agency pursuant to
this part or an appeal on the same matter with the MSPB pursuant to
5 C.F.R. 1201.151, but not both." This section further provides that
"whichever is filed first shall be considered an election to proceed in
that forum." Finally, EEOC Regulation 29 C.F.R. �1614.107(d) provides
that an agency shall dismiss a complaint or a portion of a complaint
where the complainant has raised the matter "in an appeal to the Merit
Systems Protection Board and �1614.301 or �1614.302 indicates that the
complainant has elected to pursue the non - EEO process."
Here, although the exact date the formal complaint was filed cannot be
determined from the undated document itself, the record contains a Notice
of Right to File dated September 29, 1997. The record further reveals
that on July 14, 1997 a decision was entered by an MSPB administrative
judge (AJ) regarding the same issue contained in complainant's EEO
complaint. Therefore, it is clear that complainant filed an MSPB appeal
prior to the EEO complaint. For purposes of an election, the employee
is considered to have elected that forum in which he or she filed first.
Accordingly, complainant is considered to have elected the MSPB forum.
The agency's dismissal of the EEO complaint was proper and is AFFIRMED.
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 (S1199)
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:
Dec. 14, 1999
____________________________
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.