0120102102
09-24-2010
Linda A. McCauley, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Office of Surface Mining Reclamation and Enforcement), Agency.
Linda A. McCauley,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Office of Surface Mining Reclamation and Enforcement),
Agency.
Appeal No. 0120102102
Agency No. LSM0902
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 15, 2010, dismissing her formal equal employment opportunity (EEO) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791, et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621, et seq. For the following reasons, the Agency's decision is AFFIRMED in part and REVERSED in part.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's formal EEO complaint.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked in the Agency's Division of Administration as an Administrative Services Specialist, GS-301-11, located in Washington, D.C. In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African American), national origin (American), sex (female), religion (Christian/Apostolic), color (Black), disability (spinal problem/undue job stress), age (52), and reprisal for prior protected EEO activity under Title VII when: (1) on August 19, 2009, she received an April 7, 2009, Letter of Proposed Removal from Government Service, and on June 12, 2009, she received a May 29, 2009, Letter of Removal from Government Service (the Letters)1; and (2) on July 6, 2009, and from August 19, 2009, to the present, she was denied access to her personal property.
The Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(4) on the ground that Complainant elected to appeal her termination from Government Service to the MSPB on July 13, 2009.2 The Agency dismissed claim 2 pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise the matter with an EEO counselor.
ANALYSIS and FINDINGS
Pursuant to 29 C.F.R. � 1614.302(b), an aggrieved person may elect to file a mixed-case complaint with an agency or a mixed-case appeal with the MSPB, but not both. Whichever action is filed first is considered an election to proceed in that forum. Id. In the event that a complaint files first an appeal to the MSPB and then a formal EEO complaint with the agency on the same matter, and there is no dispute as to the MSPB's jurisdiction, the agency will dismiss the complaint pursuant to 29 C.F.R. � 1614.107(a)(4). 29 C.F.R. � 1614.302(c). Upon review, we find that prior to filing her EEO complaint, Complainant filed an appeal with the MSPB, which the MSPB accepted. Pursuant to our regulations, a complainant may not elect to proceed in both fora; therefore, the Agency properly dismissed the claim 1.
Regarding claim 2, our regulations provide that an agency will dismiss a complaint where the matter at issue has not been brought to the attention of an EEO Counselor, and is not like or related to a matter that has been brought to the EEO Counselor's attention. 29 C.F.R. � 1614.107(a)(2). The Agency noted that, during counseling, Complainant stated as a requested remedy that she would like to retrieve her personal belongings from the workplace, but that Complainant did not raise this matter as a discrete claim of discrimination during counseling. Nonetheless, we find that when Complainant identified, as part of her requested remedy, that she be allowed to retrieve items of personal property that had been left behind following her removal, the Agency was adequately placed on notice that Complainant might raise this matter in her formal complaint. Therefore, the Agency should not have dismissed this claim, and we will remand the claim for processing.
CONCLUSION
Accordingly, based upon our review of the record and for the foregoing reasons, the Agency's final decision dismissing Complainant's formal complaint is AFFIRMED in part as to claim 1, and is REVERSED in part as to claim 2; claim 2 is REMANDED for further processing.
ORDER (E0600)
The agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to complainant a copy of the investigative file and also shall notify complainant 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 complainant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 24, 2010
Date
1 The MSPB decision, infra n.2, accounts for the apparent discrepancy in the order the Letters were received.
2 The Agency notes that the MSPB issued a decision upholding Complainant's removal in Linda McCauley v. Department of the Interior, MSPB Docket No. DC-0752-09-0694-I-1 (November 9, 2009).
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0120102102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102102