0120101753
03-29-2012
Gwendolyn R. Thorpe, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Gwendolyn R. Thorpe,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101753
Agency No. DON-09-62381-02828
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 5, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supply Utilityman at the Agency’s Military Sealift Fleet Support
Command in Norfolk, Virginia. On December 3, 2009, Complainant filed
an EEO complaint alleging that the Agency subjected her to reprisal
for prior protected EEO activity when she was reassigned as a server in
the crews mess to duties in the galley as a dishwasher, resulting in a
disciplinary action.
On February 5, 2010, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. § 1614.107(a)(4). The Agency determined
that Complainant had raised the matter in an October 14, 2009 appeal
to the Merit Systems Protection Board (MSPB). In accordance with 29
C.F.R. § 1601.302(b), a complainant may not file both a mixed case
complaint and appeal on the same matter and whichever is filed first is
considered an election to proceed in that forum. As Complainant raised a
mixed case appeal with the MSPB, the Agency determined that she elected to
proceed in that forum. As a result, the Agency dismissed the complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that her MSPB appeal only concerned her
suspension for 30 days for unprofessional conduct. Complainant argues
that her EEO complaint is separate and alleges retaliation when she was
removed from her work station and reassigned. Accordingly, Complainant
requests that the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that
an agency may dismiss a complaint where the complainant has raised
the matter in an appeal to the MSPB. A mixed-case appeal is an appeal
filed with the MSPB in which the aggrieved alleges that an agency action
was effected, wholly or partially, due to discrimination on the bases
of race, color, religion, sex, national origin, handicap, or age. See
29 C.F.R. § 1614.302(a)(2). An aggrieved person may 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,
The record reveals that Complainant appealed a 30-day suspension to
the MSPB. In the instant matter, Complainant is alleging that she was
subjected to reprisal when she was reassigned to a dishwasher position.
This is not the same matter as that raised in Complainant’s MSPB appeal
nor is Complainant’s reassignment inextricably intertwined with her
suspension, the subject of her MSPB claim. See Gray v. Dep't of the
Treasury, Appeal No. 0120092191 (Feb. 3, 2011). Thus, the Commission
finds that the Agency’s dismissal of the complaint was improper.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED. The complaint is hereby REMANDED to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the 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.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (R0610)
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 (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:
______________________________ March
29, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120101753
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013