Matilda C.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Mar 3, 2017

0120151818 (E.E.O.C. Mar. 3, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Matilda C.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120151818
Agency No. FS-2014-00391

DISMISSAL OF APPEAL

Complainant filed an appeal with the Commission from the Agency’s March 23, 2015 final
decision, which was later modified by the Agency’s November 30, 2015 final decision, finding
no discrimination. Upon review, Complainant’s appeal is DISMISSED since the Commission
lacks jurisdiction to consider the appeal. 29 C.F.R. § 1614.302(d)(1)(ii).

The record indicates that Complainant filed her complaint on May 27, 2014, alleging
discrimination based on age (over 40) concerning her requests for on-the-job training, her
performance rating, her requests for reassignment, and her being forced to resign (incidents
from May 6, 2013 to April 21, 2014). Complainant also alleged that she was subjected to
harassment from October, 2012 to April 18, 2014. Upon completion of the investigation of the
complaint, the Agency issued its final decision on November 30, 2015, which superseded its
March 23, 2015 final decision.

EEOC Regulation 29 C.F.R. § 1614.302(d)(1)(ii) requires that if complainants are dissatisfied
with the agency’s final decision on a mixed case complaint, complainants may appeal the
matter to the Merit Systems Protection Board (MSPB) (not the EEOC) within 30 days of
receipt of the Agency’s final decision. Individuals who have received a final decision from the
MSPB on the appeal of a final decision on a mixed case complaint may petition the EEOC to
consider the MSPB’s decision. 29 C.F.R. § 1614.303(a).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120151818

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In its November 30, 2015 final decision, the Agency indicated that the instant complaint was a
mixed case complaint and clearly advised Complainant of her right to appeal its final decision
to the MSPB and not to the EEOC. Under the regulations, the Commission has no jurisdiction
to consider Complainant’s appeal.

Accordingly, Complainant’s appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)

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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 3, 2017
Date