01990525X
10-29-2000
Maurice D. Levy, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Maurice D. Levy, )
Appellant, )
)
v. ) Appeal No. 01990525
) Agency No. 98-0447
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On October 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on October 2, 1998, pertaining
to complaints 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. In his complaint, the appellant alleged that he was subjected
to discrimination on the bases of physical disability (Hepatitis C)
and prior EEO activity in a continuing pattern of harassment when:
the agency breached two settlement agreements; one of January 1996 and
the other of February 1997;
he was repeatedly reassigned and/or detailed to different services
without adequate supervision, training and resources;
he was reassigned to the Tallahassee Outpatient Clinic (TOPC);
the agency changed his job description to that of a dermatologist;
his Proficiency Report was delayed for six months and included a
derogatory statement (statement later removed);
his operating room time was reduced;
he received a memorandum, dated November 25, 1997, which was �full
of false accusations, derogatory innuendoes and a complete distortion
of facts;
he was advised that his malignancy rate was too low and because he was
being counted and compared to the rate of other surgeons;
the station failed to provide him with documentation requested under the
Freedom of Information Act (FOIA) which was relevant to his allegation
of harassment, and
the above allegations are �management's attempt to justify (his)
termination,� officials eliminate his position at TOPC, and as officials
recruit for a full-time surgeon at Salt Lake without offering him his
former position back.
On October 2, 1998, the agency issued a FAD accepting for investigation
allegations (7), (8), (9), and (10) of the appellant's complaint but
dismissing allegations (1), (2), (3), and (6) on the grounds that the
appellant had raised the same claims that are pending before or that have
been decided by the agency or Commission. Further, the agency dismissed
allegations (2), (3), (4), and (5) pursuant to 29 C.F.R. � 1614.107(d)
which permits an agency to dismiss a complaint if the same matter was
the subject of a Merit Systems Protection Board (MSPB) appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
In the instant case, the agency contends that allegations (1), (2), (3)
and (6) were dismissed because they address the same issues that were
raised in two prior complaints filed by the appellant. With regard to
allegation (1), the Commission verified that the appellant's allegation
of breach of the January 1996 settlement agreement was decided by the
Office of Federal Operations (OFO) in EEOC Appeal No. 01972086 (February
24, 1999). The Commission also verified that the appellant's allegation
of breach of the February 1997 settlement agreement and allegations
(2), (3) and (6) are pending before OFO as EEOC Appeal No. 01985667.
Therefore, we find that the agency's dismissal of allegations (1), (2),
(3), and (6) was proper.
With respect to allegations (2), (3), (4), and (5) dismissed by the
agency pursuant to 29 C.F.R. � 1614.107(d), the evidence submitted by the
agency shows that the appellant had filed several appeals with the MSPB.
Specifically, MSPB Docket No. AT-1221-98-0230-W-1, (July 15, 1998)
included allegations (2), (4) and (5) of the instant complaint and mooted
allegation (3) wherein the appellant admitted that he had voluntarily
accepted the reassignment to the TOPC. However, the MSPB Initial
Decision, addresses the appellant's claims of retaliation based on his
whistle-blowing activities which are not protected Title VII activities.
See Reavill v. Department of the Navy, EEOC Request No. 05950174 (July
19, 1996). Moreover, there is no indication in the July 15, 1998 Initial
Decision that the appellant brought any allegations of discrimination as
there are no findings on any type of discrimination. Thus, it appears
that the appeal was a non-mixed appeal. Furthermore, the July 15, 1998
Initial Decision dismissed the appellant's appeal for lack of jurisdiction
because the appellant failed to make a nonfrivolous allegation that the
agency took a personnel action as defined by 5 U.S.C. � 2302(a)(2).
In the appellant's formal complaint he alleged that the agency's
continuous acts of harassment were based on his physical disability
(Hepatitis C) and in reprisal for his prior EEO activity. Given this set
of circumstances, we believe that the agency's dismissal of allegations
(2), (3), (4), and (5) based on the appellant's filing of an MSPB appeal
was in error. However, given that allegations (2) and (3) were properly
dismissed by the agency pursuant to 29 C.F.R. � 1614.107(a), no further
action is required.
Accordingly, the agency's decision dismissing allegations (1-3, 6)
pursuant to 29 C.F.R. �� 1614.107(a) is AFFIRMED. The complaint is
REMANDED for consolidation of allegations (4) and (5) with allegations
(7-10) of the appellant's claim of harassment.
ORDER (E1092)
The agency shall accept for processing the appellant's allegations (4)
and (5) in accordance with 29 C.F.R. � 1614.108.
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
10-29-00 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations