01993817
03-17-2000
Joan Pastor, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joan Pastor, )
Complainant, )
)
v. ) Appeal No. 01993817
) Agency No. 99-0096
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 13, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 17, 1999,
pertaining to her 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.<1> In her complaint, complainant alleged that she
was subjected to discrimination in reprisal for prior EEO activity when
effective May 15, 1998, complainant was terminated from her position as
Staff Nurse in the Medical Research Service.
The agency dismissed the complaint for raising the same matter in a prior
appeal to the Merit Systems Protection Board (MSPB). Specifically, the
agency found that complainant filed an appeal regarding her termination
with the MSPB under the Whistleblower Protection Act on December 8, 1998.
The agency then found that complainant contacted a counselor concerning
her termination on December 29, 1998, and filed a formal complaint on
February 10, 1999.
On appeal, complainant argues, through her attorney, that she first
contacted the EEO office for counseling in May 1998, but was told that
the office was �in flux� due to a reorganization. Complainant then
claims that she made a �follow-up� contact in December 1998, because she
received no information from EEO. Complainant argues that she would have
filed her formal complaint sooner if the agency had conducted counseling
as required and issued a notice-of-right-to-file.
In response, the agency argues that complainant did not actually
initiate counseling until December 29, 1998. The agency also attached
a copy of the MSPB's decision concerning her termination, Docket
No. PH-1221-99-0089-W-1, dated April 16, 1999. In this decision, the
MSPB took jurisdiction over complainant's appeal, and ordered the agency
to reinstate complainant and pay damages for the back-pay and benefits
lost due to the termination.
An aggrieved person may file a �mixed case� with either the MSPB or EEOC,
but not both. See 29 C.F.R. � 1614.302(b). If an individual files
both a mixed case complaint with the EEOC and a mixed case appeal with
the MSPB, then whichever is filed first shall be considered an election
to proceed in that forum. Id. EEOC Regulations require the dismissal
of complaints involving the same matters appealed to the MSPB, where
complainant elected to pursue the matter through the MSPB rather than
the EEOC. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29
C.F.R. � 1614.107(a)(4)).
Complainant elected to proceed through the MSPB, given that she filed
her appeal prior to filing a formal complaint with the agency. Even if
complainant had filed a formal complaint first, the adjudication of the
case on the merits by the MSPB is tantamount to an election of remedies.
See Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22,
1985). In Aho, we stated that �the Commission believes that upholding the
unequivocal legislative interest to provide only one forum in which to
challenge the propriety of an agency action alleged to have been based,
in whole or in part, on discriminatory factors, takes precedence over
[complainant's] equitable entitlement to have an adjudication of that
issue in one forum or the other.� Further, �the Commission is mindful
of . . . the doctrine of res judicata, which estops a party from
establishing jurisdiction in a second forum when the involved issues
have been decided, or could have been raised and adjudicated in previous
litigation prompted by the same controversy between the same parties.�
See id. citing Stevenson v. International Paper Co., 516 F.2d 103 (5th
Cir. 1975). In the present case, complainant successfully challenged
her claim in another forum, and may not raise the same issues again with
the Commission.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 17, 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 Equal Employment Assistant
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.