01995337
11-29-2000
Mahesh C. Sikka, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Mahesh C. Sikka v. Department of Defense
01986771, 01995337
November 29, 2000
.
Mahesh C. Sikka,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal Nos. 01986771
01995337
Agency Nos. 97-LE-MS01; 97-LE-MS02; 98-LE-MS01
DECISION
Complainant filed three complaints (97-LE-MS01, 97-LE-MS02, and
98-LE-MS01) which were consolidated by the agency. The agency
consolidated the complaints and issued a decision finding no
discrimination dated June 19, 1998. The agency defined the complaints
as follows:
97-LE-MS01 (alleging discrimination on the bases of race, national origin,
and in retaliation for prior protected activity):
On October 3, 1996, complainant received a Memorandum of Warning for
Substandard Performance and was placed on a Performance Improvement Plan
(PIP).
Management harassed complainant by providing feedback on complainant's
work.
There is an unequal distribution of time given to complainant to act in
the position of Chief, Project Definition Branch.
97-LE-MS02 (alleging discrimination on the bases of race, national origin,
and in retaliation for prior protected activity)
Harassment because management issued weekly progress reports while
complainant was on a 120 day PIP.
Harassment when complainant's supervisor discussed his performance with
the Deputy General Counsel.
98-LE-MS01 (alleging discrimination on the bases of race, national origin,
disability, and in retaliation for prior protected activity)
Termination effective July 11, 1997.
In the June 19, 1998 decision the agency informed complainant that the
consolidated complaints were a mixed case complaint and that complainant
had no right to a hearing before an EEOC Administrative Judge. The agency
found no discrimination with regard to the claims raised and informed
complainant that he could file an appeal with the Merit Systems Protection
Board (MSPB). Complainant filed an appeal with the MSPB, as well as
the Commission.<1>
The record indicates that inexplicably the subject complaints were
forwarded to an EEOC Administrative Judge (AJ) for a hearing. The EEOC
AJ issued �Orders� dated January 13, 1999, in which the EEOC AJ: (1)
dismissed 98-LE-MS01 (termination) from the AJ's jurisdiction and remanded
the matter to the agency for dismissal as mixed case complaint; and (2)
remanded 97-LE-MS01 and 97-LE-MS02 to the agency to be held in abeyance.
The agency subsequently issued a decision dated May 13, 1999 dismissing
98-LE-MS01 (termination) on the grounds that complainant appealed the
matter to the MSPB.
The instant appeals are from the June 19, 1998 agency decision (EEOC
Appeal No. 01986771) and from the May 13, 1999 agency decision (EEOC
Appeal No. 01995337). The instant appeals are consolidated pursuant
to � 1614.606. EEOC Regulation 29 C.F.R. � 1614.302(d)(1)(ii) provides
that if a complainant is dissatisfied with the agency's final decision
on a mixed complaint, then complainant �may appeal the matter to the
MSPB (not EEOC) . . .� Therefore, we find that complainant had no
right to appeal the agency June 19, 1998 decision to the Commission.
Furthermore, since the complaints at issue were mixed case complaints,
complainant had no right to a hearing before an EEOC AJ on the claims
raised therein. Given the agency's June 19, 1998 decision on the merits
of the subject complaints, the agency's subsequent procedural dismissal
of agency number 98-LE-MS01 appears to have been in error. Consequently,
we find that there is no matter properly before the Commission on appeal
and the instant appeals are DISMISSED accordingly.
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
November 29, 2000
__________________
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 record indicates that the MSPB issued a decision on complainant's
appeal on November 10, 1999, upholding the agency's actions.