01990554
01-05-2001
Robert Carlson, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Robert Carlson v. Department of Agriculture
01990554
January 5, 2001
.
Robert Carlson,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01990554
Agency No. 980569
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 30, 1998, 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 bases of race (Caucasian), color (white), national origin (Swedish),
sex (male), religion (Southern Baptist) and in reprisal for prior EEO
activity when:
Complainant was subjected to continual harassment resulting in a hostile
work environment from March 14, 1995, through September 11, 1997, and
Complainant was terminated from his employment on or about October 25,
1997.
The agency dismissed issue (1) of complainant's complaint pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for raising the
same matter that is pending before or has been decided by the agency
or Commission. Specifically, the agency stated that complainant raised
issue (1) in Agency Case No. 980145 which was accepted by the agency
for investigation on February 19, 1998. The agency dismissed issue (2)
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(4), for
raising this matter in an appeal to the Merit Systems Protection Board
(MSPB) prior to filing an EEO complaint.
The record reveals that complainant contacted an EEO Counselor in August
1997 and filed a formal complaint dated October 7, 1997 (Agency Case
No. 980145). In his October 7, 1997 complaint, complainant alleged that
he was subjected to a hostile and harassing work environment from March
15, 1995, through September 11, 1997. Complainant then submitted a second
mailing of his October 7, 1997 complaint dated November 13, 1997, on the
same hostile work environment claim and added as an issue his October
25, 1997 termination from the agency. By letter dated January 16, 1998,
the agency advised complainant to seek counseling within 15 days of his
receipt of this letter on the termination issue and all other issues in
his October 7, 1997 complainant, which had not previously been raised
in counseling. On February 19, 1998, the agency accepted the hostile
work environment claim for investigation under Agency Case No. 980145 but
dismissed the termination issue on the grounds that it was not brought to
the attention of an EEO Counselor. Meanwhile, complainant had contacted
an EEO Counselor on January 13, 1998, regarding his termination from
the agency. Complainant then filed a formal complaint dated March 7,
1998, on both the termination and the hostile work environment issues
(Agency Case No. 980569).
The record reveals that following his termination on October 25,
1997, complainant filed an appeal to the MSPB dated November 19, 1997
(SF-0752-98-0147-I-2). On March 30, 1998, complainant filed a Motion
to Delay Hearing and All Other proceedings on the grounds that he was
medically unable to fully participate in his appeal. After finding that
the MSPB had jurisdiction over the appeal, the Board issued a decision
on May 5, 1998, granting complainant's Motion to Delay and dismissing
the appeal without prejudice. The MSPB decision stated that complainant
could refile his appeal, but must do so by October 21, 1998.
Upon review of the record, we find that the agency properly dismissed
issue (1), for stating the same claim that is pending before or has been
decided by the agency or Commission. The record shows that on February
19, 1998, the agency accepted complainant's claim that he was subjected
to a hostile work environment from March 1995 through September 1997
(Agency Case No. 980145).<1> Thus, we note complainant cannot raise
the same claim in a subsequent EEO 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. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may
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. 29 C.F.R. � 1614.302(b). EEOC Regulation 29 C.F.R. �
1614.107(a)(4) provides that an agency shall dismiss a complaint where
the complainant has raised the matter in an appeal to the MSPB and 29
C.F.R. � 1614.302 indicates that the complainant has elected to pursue
the non - EEO process.
In the present case, we find that the agency properly dismissed
issue (2) for electing to raise the same matter in an MSPB appeal.
According to the record, complainant first contacted an EEO Counselor
with regard to the October 25, 1997 termination on January 13, 1998,
and subsequently filed an EEO complaint on this issue on March 13, 1998.
Although complainant attempted to file a formal complaint regarding his
termination on November 13, 1997, the record reveals that as of this date
complainant had not yet received counseling regarding his termination.
Thus, complainant elected to file an appeal with the MSPB concerning his
termination prior to filing an EEO complaint, and therefore elected to
pursue his termination through the non-EEO process. In addition, we note
that the dismissal of complainant's MSPB appeal without prejudice does
not negate complainant's election to pursue the matter with the MSPB.
See Johnson v. United States Postal Service, 01A00830 (June 22, 2000)
(dismissal without prejudice does not relieve election of non-EEO process
where complainant was given right to refile appeal). Therefore, the
agency properly dismissed issue (2) for alleging matters previously
raised in an MSPB appeal.
Accordingly, the agency's decision dismissing complainant's complaint
is 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
January 5, 2001
__________________
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
______________________________
1The record shows that the October 7, 1997 complaint was sent to the
EEOC San Francisco District Office in September 1998 and assigned EEOC
Case No. 370-99-X2066.