01A05603
09-05-2002
Charles Kendricks, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Charles Kendricks v. Department of Veterans Affairs
01A05603
September 5, 2002
.
Charles Kendricks,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05603
Agency No. 97-0723
Hearing No. 220-A0-5092X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 11, 2000, dismissing his complaint of unlawful
employment discrimination in violation of 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 basis of race (African-American) and in reprisal for prior
EEO activity when he was subjected to a hostile work environment and
ultimately terminated.
An EEOC Administrative Judge determined that the agency had fragmented
complainant's complaint and that as a result, what was originally a
mixed case appeal was erroneously bifurcated into two separate actions.
The Administrative Judge further determined that complainant's claims
of harassment were resolved through a union grievance and ultimately,
the Merits System Protection Board (MSPB).<1> Consequently, the
Administrative Judge dismissed complainant's claim pursuant to 29
C.F.R. �� 1614.107(a)(4) and 1614.109(b).
Upon review of the record, we agree with the Administrative Judge's
determination that the claims before her were the same as or inextricably
intertwined with the claims which complainant had elected to pursue in
the non-EEO process and that complainant had the opportunity to raise
and litigate these claims in another forum. Accordingly, we find that
the Administrative Judge's decision to dismiss the case under the above
cited authority was proper, and we affirm the agency's final decision.
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
September 5, 2002
__________________
Date
1 On September 16, 1998, the MSPB issued an
Opinion and Order sustaining an arbitrator's decision which found, inter
alia, that complainant was not the victim of discrimination. The MSPB
provided complainant with appropriate appeal rights to the Commission.
Complainant failed to appeal from the MSPB's Opinion and Order.