01A24946_r
06-26-2003
Michael R. Horn, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael R. Horn v. Department of Veterans Affairs
01A24946
June 26, 2003
.
Michael R. Horn,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24946
Agency No. 200J-0552-2002103369
DECISION
In an EEO complaint dated July 11, 2002, complainant claimed that he was
discriminated against on the bases of his race (African-American) and
color (black). The agency defined the issues in the complaint as being:
(1) on June 4, 2002, complainant was charged four hours absence without
leave (AWOL) for not coming to work; (2) complainant's OWCP claim was
denied and he was required to return to work on March, 25, 2002; and
(3) on April 9, 2002, a coworker allegedly assaulted complainant and
the coworker was not disciplined.
By agency decision dated August 9, 2002, the agency dismissed claim (1)
concerning complainant being AWOL pursuant to 29 C.F.R. �1614.107(a)(4),
on the grounds that complainant elected to pursue the matter in a
negotiated grievance procedure that permits allegations of discrimination.
The agency determined that a grievance was filed on behalf of complainant
with regard to the AWOL on June 4, 2002; a second step grievance was
filed on June 7, 2002; and on July 12, 2002, a third step grievance was
filed on behalf of complainant. The agency dismissed claims (2) and
(3) pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure
to state a claim. The agency determined with regard to claim (2) that
the claim must be filed against the Department of Labor rather than the
agency because the Department of Labor processes OWCP claims. As for
claim (3), the agency based its dismissal on the fact that complainant
had already raised the claim and then withdrew it. The agency determined
that complainant raised this claim with an EEO Counselor on April 9, 2002,
and then withdrew his informal complaint on April 22, 2002. The agency
stated that complainant raised the claim again when he contacted an EEO
Counselor in May 2002 with regard to the instant matter.
On appeal, complainant contends that although he stated during the
EEO counseling process that he believed the OWCP unfairly processed
his claim, the thrust of his claim was the discrimination after his
OWCP claim was denied and when he returned to work on March 25, 2002.
According to complainant, subsequent to the denial of his OWCP claim,
he received a memorandum from the agency, which stated that he had to
return to work on March 25, 2002. Complainant states that he requested
leave without pay because he was still suffering from his injuries, but
that his request was denied. Complainant argues that he was forced to
return to work in the same area as the coworker who had assaulted him.
Complainant further claims that he experienced disparate treatment and
harassment on or about May 29, 2002, when his request for leave pursuant
to the Family Medical Leave Act was rejected. Complainant states that
the disparate treatment and harassment has continued as management has
required that he perform duties that are beyond the restrictions set
forth by his physician.
In response, the agency asserts with regard to claim (1) that complainant
elected to pursue his complaint of discrimination through a negotiated
grievance procedure that permits claims of discrimination. With respect
to claim (2), the agency maintains that complainant is improperly making
a collateral attack on the workers' compensation claim process. As for
claim (3), the agency asserts that once a complainant has withdrawn
an informal complaint, absent a showing of coercion, a complainant may
not reactivate the EEO process by filing a complaint on the same issue.
The agency notes that complainant has not claimed that he was coerced
into withdrawing his complaint.
The Commission finds with regard to complainant receiving an AWOL
charge that the agency properly dismissed this claim pursuant to 29
C.F.R. �1614.107(a)(4), on the grounds that complainant elected to raise
the matter in a negotiated grievance procedure that permits allegations
of discrimination. By filing a grievance prior to filing the instant
complaint, complainant made an election to proceed through the negotiated
grievance process. Once complainant made such an election he could no
longer file a complaint on the same matter. Accordingly, the agency's
dismissal of claim (1) was proper.
With regard to claim (2), we agree with complainant that this claim
did not solely address the processing of his OWCP claim. The record
indicates that this claim also addresses complainant being required to
return to work in the same area as the coworker who assaulted him, the
denial of complainant's request for leave without pay, and the ongoing
practice of the agency assigning complainant duties that are beyond the
restrictions set forth by his physician. We find that the portion of
this claim that addresses the processing of the OWCP claim is a collateral
attack on the OWCP process and therefore fails to state a claim. However,
the remaining portions of this claim were not addressed by the agency
and therefore they must be REMANDED pursuant to the Order below.
Finally, with respect to claim (3), we observe that this claim was
raised in the informal complaint that complainant withdrew on April
22, 2002. The Commission has found that where a complainant �knowingly
and voluntarily withdrew her complaint...the Commission considers the
matter to have been finally abandoned.� See Tellez v. Department
of Transportation, EEOC Request No. 05930805 (February 25, 1994).
The Commission has held that a complainant may not request reinstatement
of an informal complaint unless the complaint was withdrawn pursuant
to a settlement agreement. See Allen v. Department of Defense, EEOC
Request No. 05940168 (May 25, 1995). Once a complainant has withdrawn an
informal complaint, absent a showing of coercion, a complainant may not
reactivate the EEO process by filing a complaint on the same issue. Id.
To allow such a practice would, in effect, extend the limitation period
for filing a formal complaint and subvert the need for timeliness and
efficiency in the EEO administrative process. We find that the record
supports a finding that complainant voluntarily withdrew his complaint on
April 22, 2002. We note that the record contains no evidence reflecting
that complainant was coerced into withdrawing his informal complaint.
Accordingly, we find that the agency's dismissal of claim (3) was proper.
The agency's dismissal of claims (1) and (3) and that portion of claim (2)
that addresses the processing of complainant's OWCP claim is AFFIRMED.
The agency's dismissal of the remaining portions of claim (2) as set
forth herein is REVERSED and we REMAND these portions of claim (2) to
the agency for further processing in accordance with this decision and
the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 26, 2003
__________________
Date