Maurice D. Levy, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 29, 2000
01990525X (E.E.O.C. Oct. 29, 2000)

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