John Shaffer, Complainant,v.Aida Alvarez, Administrator, Small Business Administration,) Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01a01994 (E.E.O.C. Jul. 19, 2000)

01a01994

07-19-2000

John Shaffer, Complainant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.


John Shaffer v. Small Business Administration

01A01994

July 19, 2000

John Shaffer, )

Complainant, )

)

v. ) Appeal No. 01A01994

) Agency No. 0499025

Aida Alvarez, )

Administrator, )

Small Business Administration,)

Agency. )

______________________________)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (EEOC) from the final decision of the agency

concerning complainant's claim that the agency violated Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The

appeal is accepted in accordance with 64 Fed.Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1>

The issues on appeal are whether the agency properly dismissed

complainant's formal complaint regarding his termination on the grounds

that complainant elected to challenge the termination through the Merit

Systems Protection Board.

Complainant filed an EEO complaint with the agency, in May 1998, regarding

a Proposed Letter Of Removal, but challenged his termination of October

5, 1998, through the MSPB. The MSPB issued a decision regarding the

termination which became final on April 29, 1999. On April 23, 1999,

complainant filed an EEO complaint with the agency claiming that the

termination was retaliatory.

EEOC regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved

person may initially file a mixed case complaint with the agency or an

appeal on the same matter with the MSPB, but not both. Moreover, the

adjudication of a case by the MSPB on its merits is tantamount to an

election of remedies. See Aho v. Department of Agriculture, EEOCRequest

No. 05860085 (May 22, 1985).

After carefully reviewing complainant's statements on appeal, we find

that he made an election to challenge his termination through the MSPB

and may not now raise, through the agency's EEO process, a claim of

reprisal discrimination regarding the termination. Complainant should

have raised claims of discrimination through the MSPB in accordance with

our regulations. We note as well that the issue of complainant's Proposed

Letter of Removal, which is discussed in complaint's appeal herein, is

inextricably intertwined with the issue of complainant's termination;

the MSPB necessarily considered this matter in order to determine

if complainant's removal was proper. See Marchini v. Department of

Agriculture, EEOC Request No. 05930880 (January 21, 1994). Accordingly,

it is the decision of the Commission to AFFIRM the agency's dismissal

of complainant's EEO complaint of April 23, 1999.

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 (S0400)

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. � 1614.604(c).

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:

07-19-00

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

1 On 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.