01A12345_r
06-11-2001
Jacqueline Alexander, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jacqueline Alexander v. Department of Veterans Affairs
01A12345
June 11, 2001
.
Jacqueline Alexander,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A12345
Agency No. 200P-2502
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated January 19, 2000, dismissing her complaint of unlawful
employment discrimination in violation of the Civil Rights Act of 1964
(Title VII), as amended 42 U.S.C. � 2000e et seq. In her complaint,
complainant alleged that the agency engaged in unlawful discrimination
when it suppressed relevant evidence in her termination case. Further,
complainant asserted that the agency did not discipline her former
supervisor for engaging in the same type of behavior that led to her
termination.
In its final decision, the agency dismissed the complaint. Specifically,
it found that the complaint involved the same matters that were decided
by the Merit Systems Protection Board (MSPB), as well as contains an
impermissible spin-off claim of dissatisfaction with the processing of
the complaint.
A mixed case complaint is a complaint of employment discrimination
filed with a federal agency, related to or stemming from an action
that can be appealed to the MSPB. See 29 C.F.R. �1614.302(a)(1). An
aggrieved person may elect to initially file a mixed case complaint
with an agency or may file a mixed case appeal directly with the MSPB
pursuant to 5 C.F.R. �1201.151, but not both. See 29 C.F.R. �1614.302(b).
Moreover, whichever is filed first, shall be considered an election to
proceed in that forum. See Dillon v. U. S. Postal Service, EEOC Appeal
No. 01981358 (December 23, 1998) (citing Milewski v. U.S.Postal Service,
EEOC Request No. 05920429 (June 11, 1992)). Finally, EEOC Regulation 29
C.F.R. � 1614.107(d) provides that an agency shall dismiss a compliant
or a portion of a complaint where the complainant has raised
the matter �in an appeal to the Merit Systems Protection Board and �
1614.301 or � 1614.302 indicates that the complainant has elected to
pursue the non-EEO process.�
The record reflects that on April 13, 1998, the agency removed complainant
from her position. On May 11, 1998, complainant appealed her termination
to the MSPB. On October 8, 1998, the MSPB affirmed the termination.
On December 11, 19998, complainant filed a civil action (CV98-9995 LGB)
regarding the matter in the United States District Court's Central
District of California. The Court dismissed the civil action's claim of
race, sex, and religious discrimination, leaving only a claim of reprisal.
On May 11, 2000, the Court granted an agency motion for summary judgement
regarding the remaining reprisal claim.
Upon review, the Commission finds that the agency properly dismissed
the complaint. We find that the complainant's EEO claim of disparate
treatment regarding her termination is inextricably intertwined with the
issues contained in complainant's previous termination claim, which was
adjudicated by the MSPB. Therefore, we find that complainant elected
to pursue the same matter within the MSPB forum. Likewise, we note that
complainant filed a civil suit on the same matters, thereby precluding her
from pursuing the claim within the EEO process. 29 C.F.R. � 1614.409.
The Commission notes that complainant should bring any new evidence
or claims regarding her termination to the attention of the MSPB or
civil court, since collateral attacks on matters adjudicated in another
forum are not within the purview of EEO jurisdiction. Accordingly,
the Commission finds that the complaint should be dismissed, and the
agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 11, 2001
__________________
Date