01A14738_r
04-17-2002
Edwin Cooke, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Edwin Cooke v. Department of the Army
01A14738
April 17, 2002
.
Edwin Cooke,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A14738
Agency No. BGANFO9908J0830
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 9, 2001, dismissing his 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.
In a final decision dated January 5, 2000, the agency dismissed
complainant's complaint on the grounds that it alleged a proposed agency
action. Specifically, the agency determined that the complaint addressed
a proposed termination from agency employment. On appeal, the Commission
reversed the agency's dismissal and remanded the complaint for further
processing. The Commission determined that complainant's complaint
encompassed a variety of actions: i.e., a suspension; harassment; a
reprimand; and a proposed termination. Cooke v. Department of the Army,
EEOC Appeal No. 01A02186 (June 21, 2000), request for reconsideration
denied, EEOC Request No. 05A01015 (February 28, 2001).
In the final decision that is the subject of the instant appeal, the
agency determined that complainant's complaint was solely comprised of
the claim that complainant was subjected to discrimination in reprisal
for prior EEO activity when he received a letter of proposed termination
dated August 9, 1999. The agency found that complainant was terminated
from agency employment in June 2000; and that he had filed an appeal with
the Merit Systems Protection Board (MSPB) from the agency determination
to terminate his employment. The agency dismissed the complaint on the
grounds that the proposed termination was inextricably intertwined with
the termination, that was adjudicated before the MSPB.
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. See 29 C.F.R. �1614.302(a)(1). An
aggrieved person may elect to initially file a mixed case complaint
with an agency or may file a mixed case appeal directly with the MSPB
pursuant to 5 C.F.R. �1201.151, but not both. See 29 C.F.R. �1614.302(b).
Whichever is filed first, shall be considered an election to proceed in
that forum. See Dillon v. U. S. Postal Service, EEOC Appeal No. 01981358
(December 23, 1998) (citing Milewski v. U.S.Postal Service, EEOC Request
No. 05920429 (June 11, 1992)).
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint. The record reveals that on July 31, 2000,
complainant appealed his termination from the agency to the MSPB.
Complainant's instant EEO claim addresses his proposed termination,
as well as attendant matters preceding his termination regarding
harassment, reprimand, and suspension. We therefore determine that the
matters in complainant's EEO complaint are inextricably intertwined
with his MSPB claim. Consequently, we find that complainant elected
to adjudicate the matters in his EEO claim with the MSPB. Accordingly,
the agency's dismissal of complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
April 17, 2002
__________________
Date