01991077
10-15-1999
Lorenzo Hutchins, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lorenzo Hutchins v. Department of the Navy
01991077
October 15, 1999
Lorenzo Hutchins, )
Appellant, )
)
v. ) Appeal No. 01991077
) Agency No. 98-00204-007
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning 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. The FAD was dated September 18,
1998, and received by appellant on October 29, 1998<1>. The appeal
was postmarked on November 16, 1998. Accordingly, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for raising the same matter in an appeal to the Merit Systems
Protection Board (MSPB).
BACKGROUND
Appellant filed a formal complaint on August 6, 1998, alleging
discrimination on the basis of race (black) when he was terminated from
his position of Firefighter after testing positive for drugs during a
random drug test. He also alleges that he was treated differently from
co-workers who have similar problems and were allowed to maintain their
same work status, position, and employment, whereas he was severely
punished.
In its FAD, the agency dismissed the complaint. It found that appellant
raised the same matter in a mixed case appeal filed on June 18, 1998 and
in a mixed case complaint filed on August 6, 1998. The appeal was filed
first, therefore, the MSPB appeal process is the forum that the appellant
elected to proceed in. The Commission notes that in a decision dated
October 19, 1998, the MSPB affirmed appellant's removal. Appellant does
not appear to have raised allegations of discrimination with the MSPB.
This appeal followed.
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved person may
initially file a mixed case complaint with an agency or may file a mixed
case appeal directly with the MSPB, pursuant to 5 C.F.R. �1201.151, but
not both. 29 C.F.R. �1614.302(b). EEOC Regulation 29 C.F.R. �1614.107(d)
provides that an agency shall dismiss a complaint or a portion of a
complaint where the complainant has raised the matter in an appeal to
the MSPB.
In this case, appellant filed an appeal with the MSPB prior to filing a
complaint with his agency on the same matter. Accordingly, the decision
of the agency was proper and is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 15, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant's representative acknowledged receipt of a copy of the FAD
on September 25, 1998.