01981086_r
05-19-1999
Elnora Brown, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Elnora Brown, )
Appellant, )
)
v. ) Appeal No. 01981086
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act
of 1967, as amended (ADEA), 29 U.S.C. �621 et seq., and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The final agency decision was issued on October 20, 1997. The appeal
was postmarked November 13, 1997. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
The record reflects that appellant was terminated from her agency position
as Housekeeping Aide, effective October 26, 1996.
The record further reflects that appellant subsequently appealed her
removal to the Merits Systems Protection Board (MSPB)(MSPB Docket Number
SF-0752-97-0171-I-2). The record does not reflect when appellant filed
the MSPB appeal.
On February 4, 1997, appellant filed a formal complaint that is the
subject of the instant appeal, alleging that she was the victim
of unlawful employment discrimination on the bases of race, sex,
age, disability, and in reprisal for prior EEO activity. The formal
complaint form addresses appellant's removal, as well as various other
alleged discriminatory incidents. Appellant provided no elaboration
of these matters, other than checking portions of the complaint form
identified with categories such as �assignment of duties,� �harassment,�
�performance appraisal,� �retirement,� �reinstatement�, �failure to hire�,
�suspension� and �working conditions.�
The record reflects that on July 7, 1997, appellant contacted the MSPB by
telephone, requesting that her appeal (Docket Number SF-0752�97-0171-I-2)
be dismissed without prejudice to refiling, pending the hearing and
decision on her EEO complaint.
On July 9, 1997, an Administrative Judge of the MSPB issued an Initial
Decision, dismissing appellant's MSPB appeal without prejudice to refiling
within thirty-five days of the date of the issuance of the decision on
her EEO complaint.
On October 20, 1997, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint addresses nine issues,
including appellant's termination from agency employment on October 26,
1996. The agency determined that appellant appealed the issue of the
removal and other matters relating to the EEO complaint to the MSPB prior
to filing the formal EEO complaint. The agency noted that after appellant
filed the formal EEO complaint, she decided to withdraw the MSPB appeal.
The agency dismissed appellant's complaint on the grounds that the
matters contained therein were previously raised in an appeal to the MSPB.
Under EEOC Regulation 29 C.F.R. �1614.107(d), an agency should dismiss
a mixed case complaint when it learns that an appeal containing issues
which formed the bases of the complaint was filed with the MSPB before
the EEO complaint was filed with the agency.
Here, the record reflects that appellant filed a formal compliant
with the agency on February 4, 1997, relating to her separation from
agency employment and other various alleged discriminatory incidents.
The record in this case contains an Initial Decision of the MSPB
dated July 9, 1997, dismissing without prejudice appellant's appeal
to the MSPB regarding her separation from agency employment. However,
neither the Initial Decision of the MSPB nor any other documents in the
record reflects that appellant's appeal to the MSPB was filed prior to
the instant EEO complaint. We therefore determine that the agency has
failed to demonstrate that appellant's appeal to the MSPB was filed
prior to February 4, 1997, the date that she filed the instant complaint.
Accordingly, the agency's decision to dismiss appellant's complaint is
REVERSED. Appellant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
May 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations