01992758
02-09-2001
Larry Cooper, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Larry Cooper v. Department of the Navy
01992758, 01994756
February 9, 2001
.
Larry Cooper,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal Nos. 01992758
01994756
Agency No. DON 98-00244-001
DECISION
Complainant initiated counseling in July 1998, and subsequently filed a
formal complaint alleging discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. On December 7, 1998, the
agency accepted three claims for investigation on the bases of race
(African-American), disability, and reprisal for prior EEO activity:
(1) On April 1, 1991, complainant was terminated while on approved
leave;
(2) In October 1994, after complainant's appeal to the Merit Systems
Protection Board (MSPB) was dismissed, the agency failed to inform
complainant of his right to file a discrimination complaint, and
continued to interfere with the processing of his complaint; and
Complainant was coerced into disability retirement, although he wanted
to return to work, by being told that if complainant did not apply,
he would lose his benefits.
The decision requested that complainant contact the agency within
seven (7) days if he disagreed with how it identified his claims.
Complainant duly contacted the agency by letter dated December 11,
1998, referring to his seventy-four page formal complaint to contest
the definition of his claims. The agency issued an �amended� notice
of acceptance dated December 28, 1998, identifying complainant's claims
essentially as follows:
On April 1, 1991, complainant was terminated while on approved medical
leave rather than being accommodated for his work-related disability.
The agency has failed to accommodate complainant continuing into the
present.
In October 1994, after complainant's MSPB appeal was dismissed,
the agency failed to inform complainant of his right to file a
discrimination complaint and continued to interfere with the processing
of his complaint.
On September 24, 1992, the agency coerced complainant into disability
retirement, which complainant considered to be a constructive discharge.
Complainant continued to dispute the definition of his claims. The agency
eventually responded, informing complainant that it would not modify his
claims any further. It gave complainant appeal rights to this Commission.
Complainant timely appealed to further dispute the definition of his
claims and that appeal was assigned EEOC Docket No. 01992758.
Meanwhile, complainant had identical claims pending in United
States District Court for the Southern District of California, Docket
No. 95-09935. On April 22, 1999, the agency dismissed the present EEO
complaint for alleging the same matters pending in federal district court.
Complainant timely appealed this dismissal as well and that appeal was
assigned EEOC Docket No. 01994756. Subsequently, on June 15, 1999,
the District Court dismissed the civil action without prejudice at
complainant's request.
The instant two appeals are consolidated pursuant to 29 C.F.R. �
1614.606.
ANALYSIS AND FINDINGS
Upon review of the Counselor's Report and complainant's formal complaint,
the Commission finds that the agency properly defined complainant's
claims.
The agency may dismiss claims alleging the same matters pending in a
United States District Court in which complainant is a party. See 29
C.F.R. � 1614.107(a)(3). Commission regulations mandate dismissal of
the EEO complaint under these circumstances 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 Shapiro
v. Department of the Army, EEOC Request No. 05950740 (October 10, 1996);
Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Kotwitz v. United States Postal Service, EEOC Request
No. 05880114 (October 25, 1988).
At the time of the April 22, 1999 dismissal, complainant had identical
claims pending in the administrative EEO process and federal district
court. However, this conflict was eliminated when the court dismissed
the civil action without prejudice. Therefore, complainant may proceed
with the administrative processing of his complaint without the fear of
conflicting decisions or a lack of deference to the federal judiciary.
Accordingly, the agency's dismissal is REVERSED, and the claims are
REMANDED for investigation on their merits.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0900)
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)(Supp. V 1993). 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 (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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
February 9, 2001
__________________
Date