01A22742
09-02-2003
Lisa McCall, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Lisa McCall v. Department of Agriculture
01A22742
September 2, 2003
.
Lisa McCall,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A22742
Agency No. 990582RD
Hearing No. 130-A2-8093X
DECISION
Complainant initiated an appeal from a final agency decision concerning
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission vacates and remands the agency's
final decision.
The record reveals that during the relevant time, complainant held the
position of Community Development Assistant at the agency's facility
in Hayneville, Alabama. The agency closed the Hayneville office and
transferred complainant to its facility in Luverene, Alabama. In April
1997, complainant was separated from employment due to a reduction in
force (RIF) action. Complainant sought EEO counseling and, subsequently,
filed a formal complaint alleging that she was discriminated against
on the bases of race (African-American) and color (Black) when: (1)
she was subjected to harassment; (2) she was separated from her position
pursuant to a RIF action; and (3) she was not placed on the Re-employment
Priority List.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file. The agency determined that the complaint at
hand involved allegations appealable to the Merit Systems Protection Board
(MSPB or the Board). The agency issued its final agency decision (FAD)
concluding that complainant did not establish that she was discriminated
against as alleged. Pursuant to the FAD, complainant appealed the FAD
to the MSPB. At the same time, complainant requested a hearing before
an EEOC Administrative Judge (EEOC AJ) and filed the instant appeal.
As to claim (2), complainant filed an appeal with the MSPB regarding
the separation due to the agency's RIF action. Complainant withdrew
her appeal. Based on the withdrawal, the MSPB AJ dismissed the matter
with prejudice. A dismissal with prejudice is deemed a final judgment.
Complainant was given rights to file a petition with the Board for
review or, in the alternative, with the United States Court of Appeals.
Upon review, we find that the dismissal with prejudice bars the
adjudication of claim (2) within the EEO process.
An MSPB AJ issued the Initial Decision on the matter denying jurisdiction
over claim (3). Complainant petitioned the Board for review of the
dismissal. On February 4, 2002, the EEOC AJ dismissed the mixed case
complaint. On September 2, 2002, the Initial Decision was reversed
by the Board because complainant was not provided with the opportunity
to establish MSPB jurisdiction over her appeal. Again on November 27,
2002, the MSPB AJ dismissed the complaint for lack of jurisdiction.
Upon review, we find that the FAD should be vacated and the matter
remanded for a hearing solely as to claims (1) and (3). Complainant
filed a mixed complaint. She was correctly given appeal rights to
the MSPB, not EEOC. When the MSPB AJ dismissed the matter for lack of
jurisdiction, the complaint becomes a "non-mixed" matter pursuant and
is adjudicated under 29 C.F.R. � 1614.109 et seq. Since complainant
previously requested a hearing before an EEOC AJ, the agency shall
request a hearing on this matter.
Therefore, after a careful review of the record, the Commission vacates
the agency's final action and remands claims (1) and (3) to the agency
in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Birmingham
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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
September 2, 2003
__________________
Date