05980813
10-08-1998
Lee E. Gaines, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Lee E. Gaines v. Department of the Navy
05980813
October 8, 1998
Lee E. Gaines, )
Appellant, )
)
v. ) Request No. 05980813
) Appeal No. 01974419
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
__________________________________)
DECISION ON REQUEST TO RECONSIDER
On May 19, 1998, the Department of the Navy (the agency) initiated a
request to the Equal Employment Opportunity Commission (Commission) to
reconsider the decision in Lee E. Gaines v. John H. Dalton, Secretary,
Department of the Navy, EEOC Appeal No. 01974419 (April 17, 1998). EEOC
regulations provide that the Commission may, in its discretion, reconsider
any previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the agency's request is GRANTED.
Appellant filed a formal complaint of race, sex, age, physical and mental
disability discrimination, and reprisal on January 12, 1996, alleging
that: 1) on November 13, 1995, he was placed on unauthorized absence
without pay beginning September 26, 1995; and 2) on October 11 and 19,
1995, and November 1, 1995, management sent him letters requesting
medical information that was not required until he returned to work.
The agency dismissed the complaint in a final decision issued April 15,
1997, because appellant raised these same issues as part of his Merit
Systems Protection Board (MSPB) appeal on his subsequent removal.<1>
The agency further dismissed allegation 2 for failure to state a claim.
The previous decision reversed the agency's dismissal. While the previous
decision acknowledged that EEOC Regulation 29 C.F.R. �1614.107(d)
requires agency dismissal of a complaint where the complainant has
raised the same matter in an MSPB appeal, it noted that appellant had
filed his EEO complaint prior to the MSPB appeal, and therefore, under
29 C.F.R. �1614.302, appellant had elected to pursue his allegations in
the EEO process. Therefore, the previous decision reversed the agency's
dismissal and remanded the allegations to the agency for processing.<2>
In the agency's request for reconsideration, the agency argues that
Commission precedent requires the dismissal of a complaint, even if
filed prior to an appeal to the MSPB, where the complainant raises the
same issues in his complaint as part of his MSPB appeal and they are
"inextricably intertwined" with the action which is under consideration
by the MSPB. The agency presents evidence in the form of appellant's
closing argument brief in his MSPB appeal which clearly shows that
appellant raised both allegations 1 and 2 before the MSPB.
We agree with the agency that appellant's complaint allegations formed
the basis of the removal action before the MSPB. The Commission has
held that where an allegation has merged with a matter before the MSPB,
they may be inextricably intertwined, thereby requiring dismissal of
the complaint. Moore v. U.S. Postal Service, EEOC Request No. 05970164
(July 23, 1998). In this case, appellant's removal action was predicated
on the two allegations set forth in his EEO complaint, his unauthorized
absence and his failure to provide required medical documentation.
Appellant specifically raised those allegations as part of his MSPB
appeal. Accordingly, we find that allegations 1 and 2 have been subsumed
in his MSPB appeal and that the agency properly dismissed his complaint.
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to GRANT the agency's request. The decision
in EEOC Appeal No. 01974419 (April 17, 1998) is REVERSED and the agency's
final decision is AFFIRMED. There is no further right of administrative
appeal on a decision of the Commission on this Request to Reconsider.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Appellant was removed from the agency effective September 21, 1996 due
to excessive unauthorized absences and failure to provide requested medical
information. Appellant appealed his removal to the MSPB on September 23,
1996, where he raised the affirmative defenses of race, sex, age and
disability discrimination along with reprisal.
2 The previous decision further found that allegation 2 did state a
claim since the action taken by the agency affected a term, condition
or privilege of employment.