01a02564
07-19-2000
Brenda F. Jones, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Brenda F. Jones v. Department of Veterans Affairs
01A02564
July 19, 2000
.
Brenda F. Jones,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02564
Agency No. 99-3115
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated January 12, 2000, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> We accept the
appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
on July 1, 1999, claiming that she was discriminated against on the bases
of race and sex when the agency denied her back pay for the period of
April 27, 1997 to April 6, 1999. The record reflects that complainant
was indefinitely suspended during this period.
The agency dismissed the complaint finding that complainant had previously
filed an appeal with the Merit System Protection Board (MSPB) (MSPB
Docket No. AT-0752-99-0624-I-1) regarding the suspension, and that the
back pay issue was inextricably intertwined with the suspension issue.
Complainant makes no statement on appeal. In response, the agency
repeats its argument that the suspension and back pay claims are
inextricably intertwined, further noting that the MSPB dismissed the
appeal for untimely filing because complainant was unable to justify
the delay.
Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.302(b)) provides that
an aggrieved person may initially file a mixed case complaint with the
agency or an appeal on the same matter with the MSPB, but not both.
This section further provides that if an individual files both a mixed
case complaint and an appeal on the same matter, whichever is filed first
shall be considered an election to proceed in that forum. Volume 64
fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(4)) provides, in part, that an agency may
dismiss a complaint where the complainant has raised the same matter in
an appeal to the MSPB.
After careful review, we agree with the agency that the indefinite
suspension and the back pay claims are inextricably intertwined because a
determination as to entitlement to back pay cannot be reached unless the
legitimacy of the suspension is first decided. Furthermore, the record
is clear that complainant had notice of her MSPB election rights, and
filed her appeal with the MSPB on June 14, 1999, seventeen days before
filing her EEO complaint, thereby electing to proceed in that forum.
Accordingly, we find that the agency properly dismissed the instant
complaint, and we AFFIRM the agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 19, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.