Jacqueline Alexander, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 11, 2001
01A12345_r (E.E.O.C. Jun. 11, 2001)

01A12345_r

06-11-2001

Jacqueline Alexander, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jacqueline Alexander v. Department of Veterans Affairs

01A12345

June 11, 2001

.

Jacqueline Alexander,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A12345

Agency No. 200P-2502

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision dated January 19, 2000, dismissing her complaint of unlawful

employment discrimination in violation of the Civil Rights Act of 1964

(Title VII), as amended 42 U.S.C. � 2000e et seq. In her complaint,

complainant alleged that the agency engaged in unlawful discrimination

when it suppressed relevant evidence in her termination case. Further,

complainant asserted that the agency did not discipline her former

supervisor for engaging in the same type of behavior that led to her

termination.

In its final decision, the agency dismissed the complaint. Specifically,

it found that the complaint involved the same matters that were decided

by the Merit Systems Protection Board (MSPB), as well as contains an

impermissible spin-off claim of dissatisfaction with the processing of

the complaint.

A mixed case complaint is a complaint of employment discrimination

filed with a federal agency, related to or stemming from an action

that can be appealed to the MSPB. See 29 C.F.R. �1614.302(a)(1). An

aggrieved person may elect to initially file a mixed case complaint

with an agency or may file a mixed case appeal directly with the MSPB

pursuant to 5 C.F.R. �1201.151, but not both. See 29 C.F.R. �1614.302(b).

Moreover, whichever is filed first, shall be considered an election to

proceed in that forum. See Dillon v. U. S. Postal Service, EEOC Appeal

No. 01981358 (December 23, 1998) (citing Milewski v. U.S.Postal Service,

EEOC Request No. 05920429 (June 11, 1992)). Finally, EEOC Regulation 29

C.F.R. � 1614.107(d) provides that an agency shall dismiss a compliant

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.�

The record reflects that on April 13, 1998, the agency removed complainant

from her position. On May 11, 1998, complainant appealed her termination

to the MSPB. On October 8, 1998, the MSPB affirmed the termination.

On December 11, 19998, complainant filed a civil action (CV98-9995 LGB)

regarding the matter in the United States District Court's Central

District of California. The Court dismissed the civil action's claim of

race, sex, and religious discrimination, leaving only a claim of reprisal.

On May 11, 2000, the Court granted an agency motion for summary judgement

regarding the remaining reprisal claim.

Upon review, the Commission finds that the agency properly dismissed

the complaint. We find that the complainant's EEO claim of disparate

treatment regarding her termination is inextricably intertwined with the

issues contained in complainant's previous termination claim, which was

adjudicated by the MSPB. Therefore, we find that complainant elected

to pursue the same matter within the MSPB forum. Likewise, we note that

complainant filed a civil suit on the same matters, thereby precluding her

from pursuing the claim within the EEO process. 29 C.F.R. � 1614.409.

The Commission notes that complainant should bring any new evidence

or claims regarding her termination to the attention of the MSPB or

civil court, since collateral attacks on matters adjudicated in another

forum are not within the purview of EEO jurisdiction. Accordingly,

the Commission finds that the complaint should be dismissed, and the

agency's decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

June 11, 2001

__________________

Date