01A02637
03-27-2001
Judy L. Freeman, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Judy L. Freeman v. Department of the Army
01A02637
March 27, 2001
.
Judy L. Freeman,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A02637
Agency No. AWGRFO9909J0320
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 30, 1999, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of sex (female), age, and in retaliation
when the agency failed to save her position from a reduction in force
(RIF).
The agency dismissed the complaint for stating the same matter previously
raised before the Merit Systems Protection Board (�MSPB� or �Board�).
Alternatively, the agency dismissed the claim for untimely counselor
contact.
On appeal, complainant argues, through her representative, that others
were brought back to their jobs, but she was demoted after the RIF.
In response, the agency argues that complainant raised these issues with
the MSPB, and that she was aware of them by March 1999, when she filed
her MSPB appeal.
The record includes a copy of the MSPB appeal decision dated October 28,
1999, Docket No. AT-0351-99-0445-I-2. It concerned complainant being
placed in a GS-4 position after her GS-5 position was eliminated in a RIF.
According to the decision, complainant initially filed an appeal with
the MSPB on March 30, 1999, and again on July 2, 1999. Complainant filed
a petition for review, which the MSPB denied on April 5, 2000.
On her March 30, 1999 MSPB appeal form, complainant claimed to have
filed an informal complaint with the agency EEO office. However, the
record includes complainant's pre-complaint form and counselor's report,
indicating that complainant did not contact a counselor until August
30, 1999; complainant did not file her formal complaint until November
10, 1999.
This matter involved a mixed case issue. In such circumstances, the
complainant must elect to pursue her complaint through either the MSPB
or EEO process. See 29 C.F.R. � 1614.302(b). The filing of an appeal
to the MSPB constitutes election of the MSPB (mixed case appeal process);
filing a formal complaint with the agency constitutes an election of the
EEO (mixed case complaint process). See id. The agency may dismiss EEO
complaints filed on the same matters previously brought before the MSPB.
See 29 C.F.R. � 1614.107(a)(4).
Dismissal is appropriate only where neither the MSPB or agency question
the Board's jurisdiction over the matter. See 29 C.F.R. � 1614.302(c)(2).
In the present case, complainant clearly elected the MSPB process by
filing an appeal prior to filing her formal complaint. Further, the MSPB
accepted jurisdiction over the issue and rendered a decision thereon.<1>
Accordingly, the agency's dismissal is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The allegations of discrimination must be brought to the attention of
MSPB pursuant to 5 C.F.R. � 1201.155. See 29 C.F.R. � 1614.302(c)(2)(i).
Complainant may petition the Commission for review of any MSPB decision
concerning discrimination on the basis of race, color, religion, sex,
national origin, age or disability. See id.
2Since we are affirming the agency's dismissal on the grounds of raising
the same matter appealed to the MSPB, we will not address the agency's
alternative grounds for dismissal, i.e., untimely counselor contact.