01A23431_r
04-30-2003
Denise Gutierrez, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Denise Gutierrez v. Department of the Navy
01A23431
April 30, 2003
.
Denise Gutierrez,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23431
Agency No. 02-62204-020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 9, 2002, dismissing her 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 her
January 24, 2002 complaint, complainant alleged that she was subjected
to discrimination on the basis of sex when:
On May 29, 2001, complainant was called into a supervisor's office and
he yelled at her for a fire incident that occurred on May 21, 2001.
On May 31, 2001, complainant was reassigned to an ambulance and informed
that she would no longer be permitted to drive the fire engines.
Complainant was also told she would receive a letter of reprimand.
On June 1, 2001, complainant's supervisor became angry with complainant
for missing roll call.
Between June 2001 and July 2001, at every roll call, complainant's
supervisor would discuss the May 21, 2001 fire incident and blame
complainant.
On August 21, 2001, complainant's request for reassignment to the position
of Firefighter was denied.
In a final decision dated May 9, 2002, the agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), after determining that
complainant's claims are inextricably intertwined with complainant's
appeal to the Merit Systems Protection Board (MSPB), filed on November
8, 2001. The agency further dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely filing of the complaint. Further,
the agency, by notice dated April 26, 2002, informed complainant that the
representative she had chosen presented a conflict of interest. The agency
disqualified complainant's representative from further representation.
EEOC Regulation 29 C.F.R. � 1614.605(c) states that:
In cases where the representation of a complainant or agency would
conflict with the official or collateral duties of the representative,
the Commission or the agency may, after giving the representative an
opportunity to respond, disqualify the representative.
On appeal, complainant argues that her designated representative should
not have been disqualified by the agency for what the agency asserts
is a "conflict of interest." We agree. We find that the agency
misapplied 29 C.F.R. � 1614.605(c) in disqualifying complainant's
chosen representative. See Binion v. Department of the Air Force, EEOC
Appeal No. 01963870 (March 17, 1997). We find that nothing in the record
indicates that complainant's choice of representative presents a conflict
between his duty to complainant (with respect to her instant complaint)
and his official (or collateral) duties with the agency. Rather, the
agency's disqualification rests on the notion that the representative,
in his own EEO matter, may hold an interest adverse to complainant's
interests while advocating her position in the present complaint.
We find this type of competing interest does not fall within the scope
of the proscribed conflicts of interest in 29 C.F.R. � 1614.605(c).
The agency's decision to disqualify complainant's representative was
therefore improper. We do not find, however, that the agency's dismissal
of the complaint was therefore improper.
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)).
The record confirms that complainant filed an appeal with the MSPB,
alleging sex discrimination in connection with her "downgrade" or
demotion, from the position of Firefighter Driver/Operator, GS-0081-06,
to the position of Firefighter, GS-0081-05, effective November 18, 2001,
that occurred as a result of complainant's role in the fire incident of
May 21, 2001. We concur with the agency that the events described in
complainant's complaint cannot be separated from the issues contained
in complainant's MSPB appeal. Complainant's filed her MSPB appeal
on November 8, 2001, more than two months prior to her January 24,
2002 EEO complaint. We find therefore, that complainant elected to
pursue her claim for relief through the MSPB process. Accordingly we
AFFIRM the agency's dismissal of the complaint pursuant to 29 C.F.R. �
1614.107(a)(4).
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
April 30, 2003
__________________
Date