01a03246
10-26-2000
James Henderson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James Henderson v. Department of the Navy
01A03246
October 26, 2000
.
James Henderson,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03246
Agency No. 99-42237-003
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final agency
order dismissing his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.<1> This appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the agency's final
order is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
for raising the same matter in an appeal to the Merit Systems Protection
Board (MSPB).
BACKGROUND
Complainant, formerly employed by the agency as a Supervisory Police
Officer (GS-8), filed a formal complaint on February 3, 1999, in which he
alleged that he was discriminated against on the bases of race (Black),
sex (male), and reprisal (prior EEO activity) when he was removed from his
position as a Supervisory Police Officer and placed in a non-supervisory
position on November 10, 1998, he was placed on Leave Without Pay/Absent
Without Leave (LWOP/AWOL) status during the pay period ending December 19,
1998, and the agency refused to pay him as directed by the Department
of Labor, Office of Workers Compensation Program on December 23, 1998.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, the agency provided complainant with a copy of the
investigative report and informed him of his right to request a final
decision from the agency or an administrative hearing before an EEOC
Administrative Judge (AJ). On September 30, 1999, complainant chose
the latter.
On December 10, 1999, the agency filed a Motion to Dismiss with the
EEOC AJ upon discovering that the issues raised in this complaint
were identical to those that had already been resolved by the MSPB.<2>
After complaint failed to respond to the agency's motion, the AJ issued
an order dismissing the complaint pursuant to 29 C.F.R � 1614.107(a)(4)
upon finding that the evidence offered by the agency made clear that the
issues in this complaint were intertwined with the issue of complainant's
subsequent removal which was heard before the MSPB. On February 28,
2000, the agency issued a final order adopting the AJ's findings.
ANALYSIS AND FINDINGS
An agency is authorized to dismiss an entire complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination or in an appeal to the Merit
Systems Protection Board. 29 C.F.R. � 1614.107(a)(4).
As stated by the AJ, information provided by the agency firmly
establishes that the issues contained in the instant complaint were
heard and considered by the MSPB in the complainant's removal case.
In addition, we note that complainant's MSPB case was subsequently
appealed to this Commission and is pending. EEOC Petition No. 03A00113.
Upon examining the records provided from the MSPB, we find, as did the
AJ, that the issues complained of herein are the same as the issues
complained of before the MSPB. For that reason, the agency's dismissal
pursuant to 29 C.F.R. � 1614.107(a)(4) was appropriate. We note, however,
that those issues will be considered by this Commission pursuant to 29
C.F.R. �1614.303.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response thereto, and arguments and
evidence not specifically addressed in this decision, we hereby AFFIRM
the final agency order.
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
October 26, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In its final order, the agency stated that the issues before the MSPB
were already resolved. Evidence in our files, however, indicate that an
initial MSPB decision was issued on September 23, 1999. That decision
was appealed to the entire Board and was not resolved until June 1, 2000.