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.