01a01956
06-20-2000
Daniel L. Hinen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Daniel L. Hinen v. Department of Veterans Affairs
01A01956
June 20, 2000
Daniel L. Hinen, )
Complainant, )
)
v. ) Appeal No. 01A01956
) Agency No. 99-4581
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated December 8, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), age
(44), and in reprisal for prior EEO activity when:
On July 6, 1999, complainant was notified that he was not selected
for the Food Service Supervisor, WS-7408-2 position; and
On July 6, 1999, complainant was notified that he was not selected
for the Cook Supervisor, WS-7404-7 position.
The agency dismissed both claims for alleging the same matters raised
with the Merit Systems Protection Board (MSPB). Alternatively, the
agency dismissed both claims for alleging the same matters raised in
the negotiated grievance process.
On appeal, complainant argues that his grievance concerns a contract
violation, not discrimination. He also contends that his MSPB appeal
fails to allege the bases of race or age.
The record includes a copy of the MSPB appeal, Case No. 3443-99-0615-I-1.
This appeal challenges the non-selections.
EEOC Regulations provide for the dismissal of claims alleging the same
matter raised in an appeal to the MSPB, provided that complainant elected
to pursue the non-EEO process. See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified as 29 C.F.R. � 1614.107(a)(4). Mixed-case matters may
be filed with the MSPB, or in the EEO process, but not both. See 29
C.F.R. � 1614.302(b). Election is accomplished by filing an appeal with
the MSPB, or filing a formal EEO complaint. See id.
In the present case, complainant elected to pursue his claim through
the MSPB. His failure to allege discrimination in his MSPB appeal does
not save his EEO complaint. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), ch.4 p. 4 (November
9, 1999). Accordingly, the agency's dismissal is AFFIRMED.
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:
June 20, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
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.