01A33255
08-15-2003
Richard L. Schnelle, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Richard L. Schnelle v. U.S. Department of Agriculture
01A33255
August 15, 2003
.
Richard L. Schnelle,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A33255
Agency No. 010534
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 24, 2003, 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 reprisal for prior EEO activity when the agency conducted an
investigation on complainant without getting the required approval from
agency headquarters. Complainant further alleged that he (1) received
no counseling, (2) suffered a job loss, (3) was harassed by agency Law
Enforcement personnel; and (4) was refused his request for mediation.
Upon review we find that the agency properly dismissed complainant's
complaint. The record reveals that on August 24, 2001, complainant filed
a civil action (identified as Civil Action No. Civil Action No. 01-1667)
in the United States District Court for the District of Colorado. The
record further discloses that the claims raised therein include an
assertion by complainant that he lost his job because of reprisal as
the basis for the cause of action. The regulation found at 29 C.F.R. �
1614.409 provides that the filing of a civil action "shall terminate
Commission processing of the appeal." Commission regulations mandate
dismissal of the EEO complaint under these circumstances so as to prevent
a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October
25, 1988).
The record also revealed that complainant's allegations regarding
his job loss and harassment by agency Law Enforcement personnel were
already decided by the agency and affirmed by the Commission in Schnelle
v. Department of Agriculture, EEOC Appeal No. 01A05949 (May 31, 2001).
Therefore, complainant may not now raise an allegation that involves
matters that were already resolved. See 29 C.F.R. � 1614.107(1).
Complainant also alleged that he did not receive counseling, but a
review of the record reveals that an EEO Counselor's Report, dated
April 18, 2001 was submitted for complainant's informal complaint and
reflects that complainant received EEO counseling. As such, complainant
allegation is without merit. Finally, complainant alleges that the
agency refused to mediate his complaint. We note however, that while
the statutes enforced by the EEOC encourage the use of Alternative
Dispute Resolution, participation in mediation is voluntary requires
the consent of both parties. Accordingly, the agency's final decision
on these issues is affirmed.
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
August 15, 2003
__________________
Date