01A22167_r
05-08-2003
Jacquelyn D. Collins, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Jacquelyn D. Collins v. Department of the Navy
01A22167
May 8, 2003
.
Jacquelyn D. Collins,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22167
Agency No. 01-67353-002
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 6, 2002, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of race (African-American) and in reprisal for prior
EEO activity when she was subjected to a hostile work environment and
terminated on August 17, 2001.
In its final decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(4). Specifically, the agency found
that complainant elected to pursue the same matters with the Merit
Systems Protection Board (MSPB), precluding further adjudication of her
EEO complaint.<1>
The record reveals that on August 23, 2001, complainant filed an
appeal with the MSPB challenging her termination from the agency.
On September 10, 2001, complainant filed the instant EEO complaint.
In a decision dated December 20, 2001, an MSPB Administrative Judge
(AJ) found that the MSPB did not have jurisdiction over the matter and
dismissed complainant's MSPB appeal.
EEOC Regulation 29 C.F.R. 1614.107(d) provides, in relevant part, that
an agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the MSPB. However, the Commission's regulations
provide that when an aggrieved person has filed an appeal to the MSPB
alleging discrimination, and the MSPB dismisses the appeal for lack
of jurisdiction, the agency must resume processing of the allegations
relating to the complainant's complaint. See 29 C.F.R. 1614.302(b).
In the instant case, we find that the agency improperly dismissed
complainant's complaint. Because it found that it lacked jurisdiction over
complainant's claim, the MSPB did not address complainant's harassment and
discrimination claims. Yet, the agency dismissed complainant's complaint
because complainant appealed the matter to the MSPB. Although the
agency states in its final decision that complainant's claim was pending
a hearing with the MSPB in January 2002, there is nothing in the record
supporting this conclusion. Instead, the record indicates that the MSPB
AJ's decision finding that the MSPB lacked jurisdiction over complainant's
claim became final on January 24, 2002, because complainant failed to
petition the Board for review of the AJ's dismissal. Therefore, we are
persuaded that dismissing complainant's complaint left complainant without
a forum to have her claims of discrimination heard. In view of the MSPB's
position, the Commission has held that the matter should no longer be
viewed as a "mixed case" as defined by 29 C.F.R. 1614.302(a). Therefore,
the case will be considered a "non-mixed" matter and processed
accordingly. See generally, Schmitt v. Department of Transportation,
EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Department of Army,
EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. 1614.302(b).
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED and the complaint is REMANDED for further processing in
accordance with this decision and the order set forth below.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
complaint a copy of the investigative file and also shall notify appellant
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 (K0501)
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 (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 (R0900)
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 (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
_May 8, 2003_________________
Date
1Ostensibly, the agency determined that
complainant's harassment claim was �inextricably intertwined� with her
termination claim when if found that complainant elected to pursue the
same matters found in her EEO complaint with the MSPB.