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.