0120110352
03-16-2011
Janice R. Smets, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Janice R. Smets,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120110352
Agency No. 10-63126-02375
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 8, 2010, dismissing her complaint of
unlawful employment discrimination in violation of 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. For the reasons that follow, the
Agency's final decision is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Contract Specialist at the Agency's, GS-12, at the Naval Air Warfare
Center Weapons Division (NAWCWD) in Point Mugu, California. On May 5,
2010, Complainant was issued a Notice of Removal and terminated from her
Contract Specialist position. On May 24, 2010, Complainant appealed the
Agency's decision regarding the Notice of Removal to the Merit Systems
Protection Board (MSPB).
Thereafter, on June 14, 2010, Complainant sought EEO Counseling and
filed the instant formal Complaint on August 16, 2010, alleging that
the Agency subjected her to discrimination on the bases of disability,
age, and reprisal for prior protected EEO activity when on May 5, 2010,
she was issued a Notice of Removal and terminated from her Contract
Specialist position.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
on the grounds that Complainant's complaint alleged discrimination
regarding the May 5, 2010, Notice of Removal, which is the same claim she
had previously appealed to the MSPB. The Agency found that Complainant
elected to pursue her claim through the non-EEO process and dismissed
her EEO complaint.
On appeal, Complainant asserts that her claim in the instant Complaint
is not the same raised in her MSPB appeal. Complainant contends that
prior to her termination the Agency subjected her to age, disability,
and reprisal discrimination.
ANALYSIS AND FINDINGS
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. 29 C.F.R.
� 1614.302(a)(1). 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. 29 C.F.R. �
1614.302(b). EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides
for dismissal of complaints where the complainant has raised the same
matter in an appeal with the MSPB and has elected to pursue the non-EEO
process.
Upon review, we find that Complainant's complaint was properly
dismissed for stating the same claim she previously raised in her
MSPB appeal. Notwithstanding Complainant's contention, the record
reflects that her instant claim is the same claim she raised in her MSPB
appeal. Specifically, the EEO Counselor's Interview Summary signed by
Complainant on July 13, 2010, notes that Complainant wanted to proceed
only with the claim that she was improperly terminated from her Contract
Specialist position on May 5, 2005. This is the same claim at issue
in her MSPB appeal. Consequently, we find that Complainant elected to
proceed with the MSPB.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint 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 (Nov. 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
March 16, 2011
Date
2
0120110352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110352