Charles Kendricks, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01A05603 (E.E.O.C. Sep. 5, 2002)

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.