01990479
02-10-2000
Charles R. Goodwine, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Charles R. Goodwine, )
Complainant, )
)
v. ) Appeal No. 01990479
) Agency No. 97-1462
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint for having raised the same claims
previously raised and for mootness.<1> See 64 Fed. Reg. 37,656
(1999) (hereinafter referred to and to be codified as, respectively,
29 C.F.R. �� 1614.107(a)(1) and 1614.107(a)(5)). We are not persuaded
by the agency's arguments in response to complainant's timely appeal of
October 20, 1998, from the agency's September 29, 1998 final decision
(FAD), to the contrary.
The agency determined that complainant's complaint is comprised of
two claims: issuance of an unfair rating on KSAOs for a pending job
application on April 7, 1997; and receipt of a letter of admonishment
relating to time and attendance, on March 10, 1997. The agency dismissed
the claim regarding the unfair rating, on the grounds that it was
raised in a prior complaint. The claim regarding the admonishment was
dismissed on the grounds of mootness. The Commission finds, however,
that the agency has not met its burden of providing sufficient evidence
in support of its FAD. See Henry v. United States Postal Service,
EEOC Request No. 05940897 (May 10, 1995).
The Commission finds, for example, in the present case, that the agency
has not provided the Commission with a copy of the prior complaint
(hereinafter Complaint-1, or C-1) under agency case number 97-1721
purportedly filed by complainant, containing his claim that, for
prohibited reasons, his supervisor, on April 7, 1997, gave him an unfair
rating on KSAOs for a pending job application. In the absence of C-1, we
are not persuaded by the agency's submission of the EEO Investigator's
�Investigative Summary and Analysis� (�the ISA�) pertaining to C-1,
to support the FAD in the present case. The Commission finds the ISA
both unreliable and not credible for the purposes of the decision in
the present case. In this regard, we find the ISA improperly rendered
a conclusion that complainant in C-1 had failed to demonstrate that
the agency had discriminated against him. We further find the ISA's
recommendation of �a finding of no discrimination� contrary to the
need for EEO personnel, including investigators, to be neutral and
impartial. See, e.g., the Commission's revised EEO Management Directive
(EEO-MD-110) for 29 C.F.R. Part 1614 (November 9, 1999), Ch. 6, � VI (C)
(�Investigator Must Be Unbiased and Objective�).<2>
The Commission also finds no support, in the present case, for the FAD's
determination that the agency had decided C-1 �and [complainant has]
appealed that decision to the [Commission].� A search of Commission
records reveals no decision was issued with regard to C-1, and the
agency record in the present case did not contain a copy of the agency's
purported decision on C-1.
Further, the Commission finds that, in his present complaint, complainant
indicated that he had also filed a grievance on the issues raised in
his present complaint. If complainant's assertion is accurate, then
his complaint may be subject to dismissal for having previously raised
the same issues in a negotiated grievance, under a negotiated grievance
process that permits claims of discrimination to be raised in either a
grievance or in an EEO complaint but not in both. See 64 Fed. Reg. 37,656
(1999) (hereinafter referred to and codified as 29 C.F.R. � 1614.107(a)(4)
(pertaining to dismissal)); and 29 C.F.R. � 1614.301(a).
Having reviewed the entire record in the present matter, the arguments
on appeal, including those not expressly addressed herein, and for the
foregoing reasons, the Commission hereby VACATES the FAD's dismissal of
complainant's complaint.<3> The parties are advised that this decision
is not a decision on the merits of complainant's complaint in this case.
The agency shall comply with the Commission's ORDER as set forth below.
ORDER
The agency is hereby ORDERED to take the following actions:
1. The agency shall conduct a supplemental investigation and provide the
Commission and complainant with true, complete and legible copies of the
EEO Counselor's report, formal complaint, and final agency decision in
agency case number 97-1721.
2. The agency shall also provide the Commission and complainant with
evidence as to whether complainant filed a grievance on the same issues
as in the present case prior to his filing his instant formal complaint.
If such a grievance was filed, the agency shall determine whether there
existed, at the time of the filing of the grievance, a collective
bargaining agreement (CBA) that permitted the raising of claims of
discrimination. In that event, the agency shall provide the Commission
and complainant with true, complete and legible copies of relevant
portions of the CBA (including evidence of the date the grievance was
filed), and any decisions on the grievance.
3. Thereafter, the agency shall issue a report of supplemental
investigation and a letter to complainant accepting his instant complaint
for processing. Alternatively, the agency shall issue a new final
decision (FAD) with appeal rights to the Commission. The new FAD shall
provide the legal grounds and factual bases of dismissal, as well as
any documents relied on. All Ordered actions, including the report of
supplemental investigation, letter of acceptance, or new FAD, shall be
completed within sixty (60) calendar days from the date the Commission's
decision becomes final in this case.
4. The agency shall send copies of all Ordered transmittals to
complainant, as well as to the Commission's Compliance Officer, as set
forth below. The agency is advised that its failure to comply with this
Order may result in the imposition of sanctions. See 64 Fed. Reg. 37,656
(1999) (hereinafter referred to and codified as 29 C.F.R. � 1614.108,
in relevant parts).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
February 10, 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.
2The Commission's decision in the present matter should not be construed
as a determination of the merits of Complaint-1. That complaint is not
before us and will not be addressed herein,
3In light of the Commission's decision in the present matter, we need not
entertain the question of mootness at this time. The Commission expects
the agency to address the question of mootness, again, as part of its
compliance with the Commission's Order in this case.