07A20132_r
06-19-2003
Denise Fleming, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Denise Fleming v. Department of Labor
07A20132
June 19, 2003
.
Denise Fleming,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 07A20132
Agency No. 01-06-010
Hearing No. 310-A1-5502X
Complainant filed a 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (African-American) and disability
(emotional illness/depression) when:
On February 29, 2000, complainant was placed on a Performance Improvement
Plan (PIP);
In 2000, complainant was denied a promotion to the GS-12 Claims Examiner
position as a result of the PIP.
At the conclusion of the investigation, complainant requested a hearing
before an Administrative Judge (AJ). In his Order of Dismissal,
dated August 2, 2002, the AJ found that complainant alleged that the
position she occupied had been upgraded for everyone that had been a GS-11
claims examiner for at least a year, but that complainant was held back.
The AJ determined that in such circumstances the failure to promote was
a demotion and combined with her discrimination claims rendered the
complaint a "mixed case." Accordingly, the AJ ordered the agency to
process complainant's complaint as a mixed case matter, pursuant to the
provisions of 29 C.F.R. � 1614 and to provide complainant with appeal
rights to the Merit Systems Protection Board (MSPB).
On September 10, 2002, the agency filed the instant appeal with the
Commission. On appeal, the agency contends that the AJ incorrectly
found complainant's complaint to be a mixed case, in that claims of
failure to promote are not appealable to the MSPB. The agency requests
that the Commission remand the complaint for a hearing before the AJ.
The Commission deems the agency's appeal of the AJ's August 2, 2002,
Order of Dismissal to be a final decision by the agency declining to
fully implement the AJ's decision.
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 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. 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. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
We concur with the AJ's finding that the complaint could be viewed as
alleging, in part, that complainant was constructively demoted when the
agency failed to promote her to the position of Claims Examiner, GS-12,
after the agency upgraded incumbents in complainant's position who had
occupied the same position for at least one year at the GS-11 grade level.
If the MSPB were also to concur in this interpretation of the complaint,
then the MSPB may have jurisdiction over the matter. While we make no
finding regarding the MSPB's jurisdiction, we observe that the MSPB has
previously assumed jurisdiction and may, at a minimum, afford an aggrieved
claimant the opportunity for a hearing on jurisdictional considerations,
when the claims involve a constructive demotion. See Marcheggiani
v. Department of Defense, MSPB Docket No. DE-0752-01-0252-I-1 (October
3, 2001); Manlogon v. Environmental Protection Agency, MSPB Docket
No. BN-0752-99-0212-I-1 (March 1, 2001).
We find that the AJ's order that the agency process the complaint as
a mixed case complaint was proper. In remanding the complaint for
further processing as a mixed case complaint, we remind the agency that
should the MSPB decline jurisdiction, complainant shall be entitled
to continued processing of her complaint as a non-mixed complaint.
See 29 C.F.R. � 1614.302.
Accordingly, we REVERSE the agency's final decision and REMAND the
complaint to the agency for further processing as a mixed case complaint,
as directed herein.
ORDER
The agency shall issue a decision on the remanded complaint within
45 days of the date this decision becomes final (without a hearing)
pursuant to 29 C.F.R. � 1614.302(d). A copy of the agency's decision
must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 19, 2003
__________________
Date