01993701
03-17-2000
Kamal Malek, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Kamal Malek, )
Complainant, )
)
v. ) Appeal No. 01993701
) Agency No. 2003-0580-983846
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 2, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 2, 1999, pertaining to
his 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of national
origin (Egyptian), age, and in reprisal for prior EEO activity when:
On August 21, 1998, complainant was not promoted to Supervisor, Nuclear
Medicine Technician (GS-601-11), Announcement No. VN 84(98).
Complainant suffered harassment, including:
Doctor (supervisor) never acknowledging complainant's good work, but
acknowledging good work of other staff members;
Doctor speaking to complainant in an unprofessional manner;
Complainant overhearing Doctor refer to complainant as a stupid Egyptian;
Doctor looking for errors in complainant's work, but not in the work of
other workers;
On September 19, 1998, Doctor failing to recommend complainant for an
award; and
On September 21, 1998, complainant having a verbal altercation with two
doctors.
The agency failed to comply with an EEO Settlement Agreement dated
September 18, 1995.
The agency dismissed claim (1) for alleging the same matter raised in
a prior grievance. Specifically, the agency found that the collective
bargaining agreement between the agency and the union allows complaints
of discrimination to be lodged in either the EEO or grievance process,
but not both. The agency dismissed claims (2) and (3) for stating the
same matter alleged in a separate complaint filed on September 28, 1998.
The record includes a copy of the grievance, dated August 26, 1998,
concerning complainant's non-promotion. The record also contains a
separate grievance concerning breach of the 1995 settlement agreement,
and a 1998 settlement agreement concerning harassment from the doctor.
In the later settlement agreement, signed August 28, 1998, the union
agreed to drop its grievance in exchange for an agreement from Doctor
that �all employees must be treated with dignity and respect. . . .� The
August 28, 1998 agreement does not require complainant to drop any claims
in other forums regarding harassment. The record does not include any
other EEO complaints from complainant concerning breach of his 1995
settlement agreement, nor does it contain a copy of the collective
bargaining agreement stating that complaints of discrimination may be
raised in the EEO or grievance process, but not both.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. Complaints concerning the same matters
raised in a prior grievance, as described above, must be dismissed.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.107(a)(4)).
The agency has presented no evidence that the grievance process allows
complaints of discrimination to be raised either in the EEO or grievance
process, but not both. Accordingly, the Commission cannot concur with
the agency's dismissal of claim (1). Further, to the extent that the
agency dismissed claims (2) and (3) for alleging the same matter raised
in the settlement breach grievance, the dismissal was improper.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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. Again, the agency failed
to provide a copy of any pending settlement breach claim.<2> Thus,
the agency failed to substantiate the bases for its final decision.
See Marshall v. Department of the Navy, EEOC Request No. 05910685
(September 6, 1991).
CONCLUSION
Accordingly, the agency's dismissal of claims (1), (2), and (3) is
REVERSED, and the claims are REMANDED for further investigation.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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
(R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 Assistant1On 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.
2The Commission notes that claims that subsequent acts of discrimination
breach a settlement agreement must be processed as separate complaints
under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29 C.F.R. �
1614.106). See 29 C.F.R. � 1614.504(c).