01A60672
03-30-2006
John D. Butler, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
John D. Butler,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60672
Agency No. 2003-0580-2005103053
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 17, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of race (African-American) and reprisal for prior protected EEO
activity when:
1. On or about November 17, 2003, complainant was terminated from
his position of Information Technology Specialist.
2. On March 24, 2003, complainant was informed that another
individual was selected for the Chief of Operations within the
Information Management Service Line.
3. On or about April 11, 2003, complainant was denied on-call pay.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4). In
particular, the agency noted that complainant raised the removal action
with the Merit Systems Protection Board (MSPB). The agency also dismissed
claims (2) and (3) for raising the same claims in a prior EEO complaint.
Complainant appealed the agency's dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the
agency shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or Commission. It has long been
established that "identical" does not mean "similar." The Commission has
consistently held that in order for a complaint to be dismissed as
identical, the elements of the complaint must be identical to the elements
of the prior complaint in time, place, incident, and parties. See Jackson
v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996)
rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997). Upon
review, the agency provided a copy of a final agency decision regarding
Agency No. 2003-0580-2003102377. A review of that decision shows that
complainant filed a prior complaint regarding the issues raised in the
instant complaint. The issues are identical with regard to time, place,
incident and parties. Therefore, we find that the agency's dismissal of
claims (2) and (3) was appropriate.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that the
complainant has elected to pursue the non - EEO process. A review of the
record indicates that complainant raised the removal action with the MSPB.
Further, the MSPB issued a decision affirming the removal on April 1, 2004.
Since complainant has already raised the matter with MSBP, the agency
properly dismissed claim (1).
Therefore, the Commission affirms the agency's final decision dismissing
the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 30, 2006
__________________
Date