Maria E. Williams, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A34996_r (E.E.O.C. Nov. 29, 2004)

01A34996_r

11-29-2004

Maria E. Williams, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Maria E. Williams v. Department of the Army

01A34996

November 29, 2004

.

Maria E. Williams,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A34996

Agency No. BHEMFO0007A0040

Hearing No. 280-A1-4203X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaints 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.

The record reveals that during the relevant time period, complainant was

a Secretary (Office Automation), GS-0318-06, at the agency's U.S. Army

Medical Command (MEDDAC), Irwin Army Community Hospital (IACH), Office

of the Commander, Deputy Commander for Clinical Services (DCCS), in

Fort Riley, Kansas. On July 31, 2000, complainant filed the instant

formal EEO complaint, claiming that the agency discriminated against

her on the basis of national origin (Cuban) when:

her supervisor assigned a Successful 3 performance rating instead of

a Successful 1 performance rating for the annual performance review

period October 4, 1999-April 30, 2000;

and in reprisal for prior EEO activity when:

on August 28, 2000, she was detailed from her position as Secretary for

the Deputy Commander for Clinical Services (DCCS) to the Personnel

Division.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). On March 7, 2003, complainant filed a Motion

To Dismiss Without Prejudice. On April 11, 2003, complainant filed a

Supplemental Motion to Dismiss Without Prejudice. Therein, complainant

claimed that the alleged agency action �was the result of personnel

practices prohibited by civil service, laws, rules and regulations,

and thus . . . comes within the jurisdictional scope of the Office of

Special Counsel of the Merit Systems Protection Board [MSPB] pursuant to

5 U.S.C. � 1216(a)(4)� Complainant further claimed that several agency

employees engaged in an extramarital affair, and conspired with each

other to force complainant out of her position so that another party

could be assigned in complainant's place.

On April 14, 2003, the AJ issued an Order to Dismiss. Therein, the AJ

transmitted the investigative file to the agency, and stated that the

agency shall process the instant complaint as a mixed case complaint,

appealable to the MSPB. The AJ further stated that if the MSPB determines

that complainant's complaint does not constitute a mixed case, complainant

shall have thirty calendar days from the date of receiving notice of

such determination in which to refile a request for a hearing.<1>

On July 9, 2003, the agency issued a FAD finding no discrimination.

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). Further, the agency is

required to inform every employee who is the subject of an action which

is appealable to the MSPB, and who has raised the issue of discrimination

�during the processing of the action,� of the right to file a mixed case

complaint or to file a mixed case appeal with the MSPB. See Gray v. USPS,

EEOC Request No. 05910824 (December 19, 1991); Lauderdale v. Department

of the Army, EEOC Request No. 05910033 (February 15, 1991). The agency's

decision on the merits of a mixed case complaint is appealable to the

MSPB, not the Commission. 29 C.F.R. � 1614.302(d)(1)(ii).

Because the record in the instant case reflects that the matter raised

herein is a mixed case complaint, the Commission determines that the

matter should be remanded to the agency for the issuance of a new final

decision, with appropriate appeal rights to the MSPB. Accordingly, the

final agency decision is VACATED. Complainant's complaint is REMANDED to

the agency for further action consistent with the ORDER set forth below.

ORDER

The agency is ORDERED to take the following action:

Within thirty (30) calendar days of the date that this decision becomes

final, the agency shall issue a new final agency decision in the above

matter, together with appeal rights to the Merits Systems Protection

Board.

The agency shall submit a copy of the final decision to the EEOC

Compliance Officer as indicated 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

November 29, 2004

__________________

Date

1The records reveals that on August 26, 2003, complainant filed an appeal

with the MSPB. (MSPB Docket No. CII-0752-03-0753-I-1). In an Initial

Decision dated January 8, 2004, the MSPB noted that complainant's appeal

was from a final agency decision on a discrimination complaint �which

included a claim that her disability retirement was involuntary.� The

MSPB noted that after a pre-hearing conference, complainant elected to

have the MSPB appeal dismissed, in order to pursue her EEOC appeal.

Accordingly, the MSPB dismissed complainant's appeal without prejudice

to its refiling.