0120081215
08-08-2008
Alfonso E. Mirabal, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Alfonso E. Mirabal,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120081215
Agency No. 076300016
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 10, 2008 final decision1 concerning
his equal employment opportunity (EEO) complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Complainant alleged that the agency discriminated against him
on the bases of national origin (Hispanic), sex (male), color (Brown),
age (56), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:
1. On October 30, 2006, he received a "Does Not Meet" fiscal year 2006
performance appraisal;
2. He was reassigned from his Dallas Regional Office Director position
to a Non-Supervisory GS-15, Program Analyst position effective January 7,
2007;
3. On November 21, 2006, the agency proposed his removal from Federal
service for failure to accept a directed assignment;
4. He was forced to involuntarily retire as a result of the reassignment
and proposed removal.
Complainant filed a mixed complaint with the agency. The matter was
accepted and investigated. Complainant's attorney disputed the agency's
characterization of the matter as a mixed complaint, and although
complainant was advised that he had no right to a hearing, he nonetheless
requested one. On November 5, 2007, an EEOC AJ dismissed the complaint
for lack of jurisdiction and returned the matter to the agency for
issuance of a final agency decision. Complainant filed his premature
appeal thereafter. The agency issued its decision on April 10, 2008,
finding no discrimination and giving complainant appeal rights to the
Merit Systems Protection Board (MSPB). Complainant appealed to the MSPB.
By letter to the Commission dated July 2, 2008, complainant informed
the Commission that the MSPB had issued a decision on the matter finding
that complainant's retirement was voluntary and therefore it did not have
jurisdiction over the matter. Complainant included a copy of the MSPB
decision, and requested that the matter be returned for an EEOC hearing.
When the MSPB has denied jurisdiction in such matters, the Commission
has held that there is little point in continuing to view the matter as
a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the case
will be considered a "non-mixed" matter and processed accordingly. See
generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126
(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883
(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). The agency's
final decision is vacated and the matter is remanded as set forth below.
ORDER
Complainant is advised by operation of 29 C.F.R. � 1614.302(c)(2)(ii),
the agency is required to process his allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency
shall acknowledge to complainant that it has received the remanded matter
within thirty (30) days of the date this decision becomes final. If it
has not already done so, the agency shall issue to the complainant a
copy of the investigative file and also notify the complainant of the
right to a hearing before an EEOC Administrative Judge within sixty
(60) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2008
__________________
Date
1 Complainant filed his appeal after an EEOC Administrative Judge
(AJ) dismissed the matter, but before the agency issued its FAD.
The Commission will treat the appeal as if it were from the FAD.
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0120081215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081215