Elijah Burton, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a03577 (E.E.O.C. Jul. 20, 2000)

01a03577

07-20-2000

Elijah Burton, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Elijah Burton v. Department of Veterans Affairs

01A03577

July 20, 2000

.

Elijah Burton,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03577

DECISION

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

decision dated February 8, 2000, dismissing his 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 (Title VII).<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 September 3, 1997, alleging that he was harassed due to reprisal as

evidenced by the following incidents:

On May 12, 1997, he was harassed when the agency's police arrested him;

On May 12, 1997 his supervisors harassed him when they asked him to

remove the bicycle lock from his desk;

He was denied a request for advanced sick leave; and,

He was not provided with proper supervision.

The agency dismissed the complaint, finding that complainant had

raised the same issues in a civil action brought under Title VII in

the U.S. District Court, Central District of California. The agency

specifically indicated that complainant's �exhibit 13" in the civil

action was the EEO Counselor's report in the instant complaint, which

raised the inference that complainant intended to pursue these incidents

in a judicial forum.

On appeal, complainant argues that he filed his civil action on February

13, 1997, and that it covered only those EEO complaints filed against

the agency up to that point but not after. Complainant argues that

the civil action does not therefore include the matters raised in the

instant complaint. The agency requests that we affirm its decision to

dismiss the complaint.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(3)) allows for the dismissal of a

complaint that is pending in a United States District Court in which the

complainant is a party. 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 Shapiro

v. Department of the Army, EEOC Request No. 05950740 (October 10, 1996);

Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079

(May 7, 1990); Kotwitz v. United States Postal Service, EEOC Request

No. 05880114 (October 25, 1988).

In the instant case the record shows that complainant filed a civil

action against the agency regarding his non-selection for a series of

promotions due to race discrimination pursuant to both state civil

rights statutes as well as Title VII. The case was first filed in the

Superior Court of California on February 13, 1997, and then removed to

U.S. District Court for the Central District of California on May 5,

1997, because of the Title VII claim (Civil Action No. CV 97-3339CM

(JGx)). Subsequently, the agency moved to have the civil complaint

dismissed because of complainant's failure to prosecute. The motion

to dismiss was granted by the court on July 7, 1998, by Order Granting

Motion To Dismiss and Denying Motion for Injunctive Relief as Moot.

Complainant appealed this determination on November 16, 1998, which was

docketed by the court as Case No. 98-56454.

Review of the court records reveals that complainant's original petition

(identified as Complaint For Injunctive Relief And Damages for Employment

Discrimination) does not include the matters raised in the instant

complaint, but instead addresses several claims of non-promotion.

However, in his appeal of the Motion to Dismiss, complainant provides

a chronological annotation of purported difficulties at the agency,

as reflected in numerous EEO complaints. This annotation includes a

discussion of the matters raised in the instant complaint, as reflected

in �exhibit 13." Notwithstanding the reference in �exhibit 13.�, the

Commission determines that these matters were not raised as a claim

in the original civil action. A fair reading of its inclusion in

�exhibit 13" of the civil action is that it was listed merely for the

sake of historical completeness. Accordingly, we find that the issues

in the instant complaint were not raised by complainant in his civil

action, and that the agency improperly dismissed it for this reason.

We REVERSE the agency's decision, and REMAND the case for action as set

forth in the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant 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 complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant 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 (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 (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 (R0400)

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:

July 20, 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 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.