01995736
08-07-2000
Frank King, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Frank King v. Department of Veterans Affairs
01995736
August 7, 2000
.
Frank King,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995736
Agency No. 972256
DECISION
Frank King (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 10, 1999 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 (Hispanic),
color (Black), national origin (Panamanian), age (54 and 55 at relevant
times), disability (lumbar radiculopathy associated with disc herniation,
with degenerative disease of the lumbar spine, tendonitis of the right
shoulder, mental functions impaired due to use of narcotics to relieve
pain), and reprisal (prior EEO activity) when:
(1) he was harassed when officials at the Office of Inspector General
(OIG) utilized illegal techniques and conducted an improper and unethical
investigation of him at the behest of officials at the agency's Hines,
Illinois facility;
(2) he was terminated on September 13, 1996.
The agency dismissed claim no. 1 pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency concluded that the OIG is an independent
unit and claims against OIG officials do not state a claim under EEOC
regulations. The agency also noted that complainant had previously
filed two complaints raising harassment allegations in regard to
the OIG's investigation practices and techniques and that the EEOC
had issued decisions on these complaints. In addition, complainant
had also raised the termination issue in one of his prior complaints.
The agency therefore dismissed claim nos. 1 and 2 as raising the claims
that has been decided by the Commission. See 29 C.F.R. � 1614.107(a)(1).
The Commission's regulations provide for the dismissal of a complaint, or
portion of a complaint, that states the same claim that has been decided
by the agency or the Commission. See 29 C.F.R. � 1614.107(a)(1). See also
Terhune v. United States Postal Service, EEOC Request No. 05950907 (July
18, 1997). A review of two prior Commission decisions reveals that
complainant's claim that the investigation conducted by OIG subjected
him to harassment has already been decided by the Commission. See King
v. Department of Veterans Affairs, EEOC Appeal Nos. 01976841, 01980304
(July 28, 1998).
Moreover, to the extent that the current harassment claim concerns
incidents that occurred on dates different from those discussed in
the previous decisions, the claim was nonetheless properly dismissed.
A complaint that alleges harassment at the hands of OIG does not
state a claim under EEOC regulations, because our regulations cover
complaints regarding an employer's, i.e., an agency's, acts of prohibited
discrimination, and the OIG is an independent unit, separate from the
agency. See Johnson v. Department of the Navy, EEOC Request No. 05960699
(April 16, 1998). Accordingly, the agency's dismissal of claim no. 1
was proper.
Furthermore, claim no. 2 was also properly dismissed as stating the same
claim that is pending before or has been decided by the agency. See 29
C.F.R. � 1614.107(a)(1). A review of the record reveals that a complaint
filed by complainant on November 25, 1996 raised the termination issue.
The agency issued a FAD on this issue on June 12, 1998, finding no
discrimination and informing complainant of his right to appeal to the
Merits System Protection Board.
Therefore, after a careful review of the record, we find that the
dismissal of the complaint was proper and hereby AFFIRM the FAD.
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
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 7, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.