01984483
02-23-1999
Jacqueline D. Watson, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jacqueline D. Watson, )
Appellant, ) Appeal No. 01984483
v. ) Agency No. 92-00164-007
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
DISMISSAL
Appellant filed the instant appeal, postmarked May 2, 1998, from a final
agency decision (�FAD�) dated March 4, 1998.<1> On the EEOC Form 573,
used by appellant on appeal, she stated that she received the FAD on
Tuesday, March 30, 1997. Pursuant to the Commission's Regulations,
an appeal must be filed within 30 days of receipt of the FAD.
29 C.F.R. �1614.402. Accordingly, any appeal to this Commission was
required to be filed with the Commission on or before Wednesday April
29, 1998, although the time period is subject to waiver, estoppel and
equitable tolling. 29 C.F.R. �1614.604(c).
In any event, the Commission notes that appellant's instant EEO complaint
challenged, among other matters: (a) a 15-day suspension issued on the
basis that she had misrepresented her experience in an application for a
supervisory position; and (b) her placement on an indefinite suspension
after her arrest on the charge of cultivating and possessing marijuana.
After the agency accepted and processed appellant's complaint,
she requested a hearing before an EEOC Administrative Judge (�AJ�).
On November 30, 1993, the AJ remanded the complaint back to the agency,
noting that both of the suspensions were appealable to the Merit Systems
Protection Board (�MSPB�). See 5 C.F.R. part 432; 5 U.S.C. 4303).
Therefore, the AJ found that the complaint was a mixed case complaint
as defined by 29 C.F.R. �1614.302(a) and, thus, the AJ did not have the
authority to hold a hearing. Accordingly, in its FAD, the agency notified
appellant that, if she was dissatisfied with the agency's decision on
her mixed case complaint, she must appeal the matter to the MSPB.
While appellant's complaint also challenges certain actions taken prior
to the suspensions, the Commission believes that such allegations are
inextricably intertwined with her allegations challenging actions
appealable to the MSPB, i.e. a 15-day suspension and an indefinite
suspension. Consequently, the Commission finds that it does not have
jurisdiction to entertain a direct appeal from the FAD, which correctly
advised appellant that her appeal must be filed with the MSPB. Therefore,
the appeal is hereby DISMISSED.
Appellant is advised that 5 U.S.C. �7702(f) provides that when �an
employee timely files [an] appeal ... with an agency other than the
agency with which the ... appeal ... is to be filed, the employee
shall be treated as having timely filed the ... appeal ... as of the
date it is filed with the proper agency.� While appellant appears to
have filed her appeal with the Commission beyond the applicable time
period, she may wish to present arguments for an extension or waiver of
the time limit to the MSPB. Consequently, this decision merely states
the evidence of record with respect to actions taken on certain dates,
and does not constitute a decision on the timeliness of any appeal.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
February 23, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1While the appeal is dated April 27, 1998, it is postmarked
May 2, 1998.