Bruce E. Reinhart, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 9, 2002
01A22751 (E.E.O.C. Oct. 9, 2002)

01A22751

10-09-2002

Bruce E. Reinhart, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Bruce E. Reinhart v. Department of Veterans Affairs

01A22751

October 9, 2002

.

Bruce E. Reinhart,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A22751

Agency No. 98-3298

Hearing No. 250-A0-8350x

Complainant filed a timely appeal with this Commission from the final

agency action dated March 21, 2001, implementing the EEOC Administrative

Judge's (AJ) decision dismissing his complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and

Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq. In his complaint, complainant alleged that

he was subjected to discrimination on the bases of disability and in

reprisal for prior protected activity when:

On June 29, 1998, he met with an agency official who threatened to

abolish his job as Human Resource Officer; and

The agency has not complied with a June 16, 1998 agreement between

the parties.

The agency accepted complainant's complaint for investigation, and at the

conclusion of the investigation, complainant requested a hearing before

an EEOC Administrative Judge (AJ). On March 5, 2002, the AJ issued a

decision without a hearing dismissing complainant's complaint pursuant

to 29 C.F.R. � 1614.107(a)(3), finding that it is the basis of a pending

civil action. Specifically, the agency concluded that she no longer had

jurisdiction over the matter because the complainant is seeking relief

in Federal Court for his claims of employment discrimination.

On March 21, 2002, the agency issued a final action fully implementing

the AJ's decision pursuant to EEOC Regulation 29 C.F.R. � 1614.110(a).

The regulation found at 29 C.F.R. � 1614.409 provides that the filing of

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

Regulation 29 C.F.R. � 1614.107(a)(3) further provides that the agency

shall dismiss an entire complaint that is the basis of a civil action

decided in a United States District Court in which the complainant is

a party.

The record indicates that complainant filed a civil action (identified

as Civil Action No. 3-99-1079) in the United States District Court for

the Middle District of Tennessee, Nashville Division. The record further

discloses that the claims raised therein are the same as those raised in

the instant complaint. 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, complainant's appeal is hereby dismissed. 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 (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

October 9, 2002

__________________

Date