0120112324
09-12-2012
Philip J. Black, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Philip J. Black,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120112324
Agency No. HS-08-TSA-008022
DISMISSAL
Complainant filed an appeal with this Commission from the Agency's decision dated March 2, 2011, concerning his complaint of unlawful employment discrimination in violation of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal at the Agency's Las Vegas Field Office in Las Vegas, Nevada. On December 29, 2008, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (physical), age (45), and in reprisal for prior protected EEO activity arising under the ADEA and the Rehabilitation Act when:
1. On May 4, 2008, Complainant became aware that the Program Manager of the Federal Air Marshal Service Office of Workers' Compensation Programs (OWCP) failed to provide necessary and truthful information to the Department of Labor (DOL), resulting in the delayed processing of Complainant's OWCP claim;
2. On an unspecified date, the Program Manager made disparaging and derogatory remarks to DOL regarding Complainant's previous EEO complaints;
3. On an unspecified date, the Program Manager promoted a negative attitude towards Complainant;
4. On an unspecified date, the Program Manager obstructed and sabotaged the Agency's reasonable accommodation process; and
5. On an unspecified date, the Agency forced Complainant to choose between vocational rehabilitation training, refusing the training and losing disability benefits, or accepting disability retirement (constructive discharge).
The Agency initially dismissed the complaint, finding that Complainant had not filed his formal complaint in a timely manner. In EEOC Appeal No. 0120092252 (May 14, 2010), the Commission reversed the Agency's dismissal and remanded the complaint for an investigation.
On March 2, 2011, the Agency issued a final agency decision in which it found that it had not discriminated against Complainant. The decision gave Complainant appeal rights to the Merit Systems Protection Board (MSPB). Despite this notification, Complainant filed an appeal with the Commission.
CONTENTIONS ON APPEAL
Complainant did not submit any statement in support of his appeal. The Agency did not submit any statement or brief in opposition to the appeal.
ANALYSIS AND FINDINGS
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 initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. � 1614.302(b).
As a general matter, if a complainant is dissatisfied with an agency's final decision on a mixed case complaint, the complainant may appeal the matter to the MSPB (not the EEOC) within 30 days of receipt of the agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii). The regulations further provide that, at the time the agency issues its final decision on a mixed case complaint, the agency shall advise the complainant of the right to appeal the matter to the MSPB (not the EEOC) within 30 days of receipt and of the right to file a civil action as provided at 29 C.F.R. � 1614.310(a). 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).
In the instant matter, the Agency determined that Complainant's complaint was a mixed case complaint and issued a final decision finding no discrimination. The final decision gave Complainant mixed case rights and instructed him to file an appeal with the MSPB, not the EEOC. Complainant, however, filed his appeal with the EEOC. Under the Commission's regulations, Complainant improperly filed his appeal from the Agency's final decision on a mixed case complaint with the EEOC, and it is DISMISSED.1
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 (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 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 12, 2012
Date
1 The Commission's regulations require that should the MSPB dismiss an appeal for lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed case complaint. 29 C.F.R. � 1614.302(c)(2)(ii).
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0120112324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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