Joan Pastor, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01993817 (E.E.O.C. Mar. 17, 2000)

01993817

03-17-2000

Joan Pastor, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Joan Pastor, )

Complainant, )

)

v. ) Appeal No. 01993817

) Agency No. 99-0096

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On April 13, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on March 17, 1999,

pertaining to her complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.<1> In her complaint, complainant alleged that she

was subjected to discrimination in reprisal for prior EEO activity when

effective May 15, 1998, complainant was terminated from her position as

Staff Nurse in the Medical Research Service.

The agency dismissed the complaint for raising the same matter in a prior

appeal to the Merit Systems Protection Board (MSPB). Specifically, the

agency found that complainant filed an appeal regarding her termination

with the MSPB under the Whistleblower Protection Act on December 8, 1998.

The agency then found that complainant contacted a counselor concerning

her termination on December 29, 1998, and filed a formal complaint on

February 10, 1999.

On appeal, complainant argues, through her attorney, that she first

contacted the EEO office for counseling in May 1998, but was told that

the office was �in flux� due to a reorganization. Complainant then

claims that she made a �follow-up� contact in December 1998, because she

received no information from EEO. Complainant argues that she would have

filed her formal complaint sooner if the agency had conducted counseling

as required and issued a notice-of-right-to-file.

In response, the agency argues that complainant did not actually

initiate counseling until December 29, 1998. The agency also attached

a copy of the MSPB's decision concerning her termination, Docket

No. PH-1221-99-0089-W-1, dated April 16, 1999. In this decision, the

MSPB took jurisdiction over complainant's appeal, and ordered the agency

to reinstate complainant and pay damages for the back-pay and benefits

lost due to the termination.

An aggrieved person may file a �mixed case� with either the MSPB or EEOC,

but not both. See 29 C.F.R. � 1614.302(b). If an individual files

both a mixed case complaint with the EEOC and a mixed case appeal with

the MSPB, then whichever is filed first shall be considered an election

to proceed in that forum. Id. EEOC Regulations require the dismissal

of complaints involving the same matters appealed to the MSPB, where

complainant elected to pursue the matter through the MSPB rather than

the EEOC. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29

C.F.R. � 1614.107(a)(4)).

Complainant elected to proceed through the MSPB, given that she filed

her appeal prior to filing a formal complaint with the agency. Even if

complainant had filed a formal complaint first, the adjudication of the

case on the merits by the MSPB is tantamount to an election of remedies.

See Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22,

1985). In Aho, we stated that �the Commission believes that upholding the

unequivocal legislative interest to provide only one forum in which to

challenge the propriety of an agency action alleged to have been based,

in whole or in part, on discriminatory factors, takes precedence over

[complainant's] equitable entitlement to have an adjudication of that

issue in one forum or the other.� Further, �the Commission is mindful

of . . . the doctrine of res judicata, which estops a party from

establishing jurisdiction in a second forum when the involved issues

have been decided, or could have been raised and adjudicated in previous

litigation prompted by the same controversy between the same parties.�

See id. citing Stevenson v. International Paper Co., 516 F.2d 103 (5th

Cir. 1975). In the present case, complainant successfully challenged

her claim in another forum, and may not raise the same issues again with

the Commission.

CONCLUSION

Accordingly, the agency's dismissal 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:

March 17, 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.