0120142657
12-16-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Health Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 0120142657
Agency No. DHANCR 14-0022
DECISION
On July 17, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency decision (FAD) dated July 3, 2014, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Major (Active Military) Quality Improvement Officer (Nurse) at the Agency's Ft. Belvoir Community Hospital in Ft. Belvoir in Virginia.
On April 21, 2014, Complainant filed a formal complaint, as amended on June 25, 2014, to add issue 2 alleging that she was discriminated against based on her race (African-American), sex (female), disability, age (44), and reprisal for prior protected EEO activity when:
1. the Agency proposed removing her from her civilian position of Nurse (which she encumbered but did not work in) by letter dated March 14, 2014; and
2. she was removed from the above position effective May 2, 2014.1
Complainant stopped working in her civilian position of Nurse on October 21, 2007, to go on active duty status, and has remained active since then. Claiming that the five year period for preserving Complainant's right to return to her civilian job expired under the Uniformed Services Employment and Reemployment Rights Act (USERRA), in November 2013, the Agency started taking action to direct her to return. It sent her a letter dated November 14, 2013, directing her to report back to work no later than December 14, 2013. It then proposed removing Complainant by letter dated March 14, 2014, charging her with absent without approved leave (AWOL) and failure to follow leave procedures. The Agency sustained the proposed removal effective May 2, 2014.
With its removal letter, the Agency advised Complainant of her rights, including the right to file an equal employment opportunity (EEO) complaint, or in the alternative an appeal with the Merit Systems Protection Board (MSPB). It advised Complainant that she could raise discrimination in either forum. It also advised her of her right to file a whistleblowing reprisal complaint with the U.S. Office of Special Counsel (OSC) and a subsequent Individual Right of Action with the MSPB.
On April 21, 2014, Complainant filed her EEO complaint alleging issue 1. According to an electronic stamp, Complainant also submitted an appeal with the MSPB on May 11, 2014. It regarded her removal. We take administrative notice that on July 1, 2014, the MSPB issued an initial decision on Appeal 1 recounting that Complainant alleged discrimination based on prior EEO activity and a violation of whistleblowing protections. The MSPB dismissed Appeal 1 for being incomplete, and duplicative of later Appeal 2. In its decision the MSPB advised Complainant that she could pursue all her claims, including any affirmative defenses of retaliation for whistleblowing or other protected activity, in Appeal 2. See MSPB Initial Decision DC-3443-14-0678-I-1, 2014 WL 3053025 (Personnet) (July 1, 2014).
We take administrative notice that on October 30, 2014, the MSPB issued an initial decision on Appeal 2. It found that Appeal 2 was within its jurisdiction, and that the parties reached a settlement agreement on the matter. The MSPB accepted the settlement agreement into the record for enforcement purposes, and dismissed the appeal as settled. See MSPB Initial Decision DC-0752-14-0804-I-1, 2014 WL 5503051 (Personnet) (Oct. 30, 2014).
With regard to Complainant's April 2014 EEO complaint, the Agency dismissed issue 1 for alleging a proposal to take a personnel action. 29 C.F.R. � 1614.107(a)(5). It dismissed issue 2 on the grounds that Complainant elected the MSPB forum. The Agency found that Complainant filed Appeal 2 on June 16, 2014, prior to her June 25 amendment adding her actual removal to her EEO complaint.
ANALYSIS AND FINDINGS
We affirm the Agency's dismissal of issue 1. When a complaint is filed on a proposed action and the Agency subsequently proceeds with the action, the action is considered to have merged with the proposal. Duarte v. United States Postal Service, EEOC Appeal No. 0120081386 (April 8, 2008)(applying the above rule where the complainant filed a complaint regarding his proposed removal and decision to remove, but was determined to have elected to challenge his removal in the MSPB forum).
A mixed case complaint is a complaint of employment discrimination 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 a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. � 1614. 302(b). EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non - EEO process. Here, the weight of the record shows that Complainant appealed her removal to the MSPB prior to amending her complaint to include this allegation, signaling her election of the MSPB forum. Moreover, the adjudication of a case by the MSPB is tantamount to an election of remedies. Spriesterbach v. United States Postal Service, EEOC Appeal No. 01A00346 (April 6, 2000). This rule has been applied where the MSPB appeal resulted in a settlement agreement. Baran v. Smithsonian Institution, EEOC Appeal No. 01996216 (Aug. 16, 2001).
Accordingly, the FAD is AFFIRMED.
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
December 16, 2014
__________________
Date
1 The Agency defined an additional issue -- on or about February 2013, Complainant filed a Military Equal Opportunity (EO) complaint and has since been subjected to reprisal. We find this was not a separate issue. Rather it supports Complainant's reprisal basis of discrimination.
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0120142657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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