Michael Johnson, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 19, 2000
01a00172 (E.E.O.C. Oct. 19, 2000)

01a00172

10-19-2000

Michael Johnson, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Michael Johnson v. Department of Veterans Affairs

01A00172

10-19-00

.

Michael Johnson,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A00172

Agency No. 98-3742

DISMISSAL

On March 18, 1998, complainant filed a complaint alleging that he was

discriminated against on the bases of race (Black), age (unspecified)

and reprisal (prior EEO activity) when:

(1) he was non-selected for a Clinical Pharmacist position;

(2) beginning November 8, 1995, he was subjected to harassment when

he was required to work nights on ten (10) consecutive evenings.

Complainant further alleged that he initiated an EEO complaint which

led to the agency finding fault in the way he has performed his assigned

duties. Complainant also alleged that he had been accused of providing

poor customer service and that he received work assignments that were

not commensurate with his education; and

(3) he was denied a three-step salary increase after he earned the

degree of Doctor of Pharmacy.<1>

The agency issued a final decision in October 1998, which accepted claims

(1) and (2). Claim(3) was dismissed as being untimely. Complainant filed

an appeal on December 1, 1998, which was docketed as EEOC Appeal 01991354

(Appeal-1). Upon completion of its investigation of claims (1) and

(2), the agency issued a final decision in July 1999. The agency, in

addition to finding no discrimination regarding claims (1) and (2), also

found that complainant failed to establish discrimination with respect

to claim(3). Complainant's appeal was filed in September 1999, and was

docketed as EEOC Appeal 01A00172 (the present appeal). On November 5,

1999, a decision was issued concerning Appeal-1. The agency's dismissal

of claim (3) was vacated. Claim (3) was remanded for a supplemental

investigation. The agency, upon receipt of the remanded claim, did not

inform the Commission that claim (3) had already been addressed in its

July 1999 final decision. In December 1999, the Commission was informed

that complainant had filed a civil action in the United States District

Court for the Northern District of Alabama. Complainant's civil action

concerned claims (1), (2), and (3).

EEOC Regulations 29 C.F.R. � 1614.409 provides that the filing of a

civil action "shall terminate Commission processing of the appeal."

Commission regulations mandate dismissal of the EEO complaint under these

circumstances so as to prevent a complainant from simultaneously pursuing

both administrative and judicial remedies on the same matters, wasting

resources, and creating the potential for inconsistent or conflicting

decisions, and in order to grant due deference to the authority of

the federal district court. See Stromgren v. Department of Veterans

Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of

Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,

EEOC Request No. 05880114 (October 25, 1988). Accordingly, the present

appeal is hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____10-19-00__________________________

Date

1On 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 29 C.F.R. Part 1614 in deciding the present

appeal. The regulations, as amended, may also be found at the Commission's

website at www.eeoc.gov.