Marian Y. Mixon, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01A03879_r (E.E.O.C. Sep. 12, 2002)

01A03879_r

09-12-2002

Marian Y. Mixon, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Marian Y. Mixon v. Department of the Treasury

01A03879

September 12, 2002

.

Marian Y. Mixon,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A03879

Agency No. TD 98-2086

Hearing No. 130-AO-8126X

DECISION

Complainant filed an appeal with this Commission from a final

agency decision pertaining to 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 record reveals that complainant was a Library Support Clerk, GS-4,

at the agency's Jackson, Mississippi District Office. Complainant was

terminated on December 4, 1991, for allegedly threatening the life

of her supervisor. The record further reveals that on May 26, 1993,

complainant filed a civil action in the United States District Court,

Southern District of Mississippi, Jackson Division concerning her

termination and non-selection. Complainant's civil action was docketed

as 3:93-CV-247-WC.

On January 12, 1998, complainant filed the instant complaint, wherein

she alleged that she was discriminated against on the bases of race and

in reprisal for prior protected activity when:

the agency provided false and derogatory information of her IRS

employment to other Federal agencies to which she had submitted an

application for employment;

the agency wrongfully terminated her employment.

On January 30, 1998, the agency accepted claim (1) for investigation.

On March 11, 1998, the agency issued a final agency decision (FAD)

dismissing claims (2) on the grounds that it was the basis of a civil

action decided by the United States District Court. The agency also

determined that complainant's complaint was comprised of a variety of

other matters (denial of unemployment benefits following termination;

documentation of the Official Personnel File with the termination action;

and a matter regarding car financing and the audit of her 1993 federal

taxes) that were not brought to the attention of an EEO Counselor and

are not like or related to a matter that was brought to the attention

of a counselor pursuant to 29 C.F.R. � 1614.107(b).

On May 30, 1998, filed a timely appeal with the Commission from the

partial dismissal of March 11, 1998.

On January 12, 2000, the agency forwarded to complainant the investigative

file for claim (1) and gave complainant hearing rights. On January 20,

2000, complainant requested a hearing before an EEOC Administrative Judge

(AJ).

On February 9, 2000, the Commission administratively closed the

appeal filed from the partial dismissal of March 11, 1998 (EEOC Appeal

No. 01983987) and remanded the dismissed matters for consolidation with

the remainder of the complaint and further processing in accordance

with the revised regulations, in particular 29 C.F.R. � 1614.107(b).

On March 7, 2000, the agency filed a Motion to Dismiss with the AJ,

requesting that the AJ dismiss claim 2 on the grounds that complainant

raised this issue before the MSPB and filed an action in Federal District

Court. The agency requested that claim 1 be dismissed for failure to

state a claim. Finally, the agency requested that matters relating

to denial of unemployment benefits; audit of complainant's taxes; and

a matter relating to car financing, be dismissed on the grounds that

complainant did not seek counseling regarding these matters and that

they are not like or related to matters for which complainant underwent

EEO counseling.

On April 4, 2000, the AJ dismissed the claims raised in the complaint

on the grounds that they have already been adjudicated by the MSPB and

in US District Court. The record reveals that on April 5, 2000, the AJ

received complainant's response to the agency's Motion to Dismiss. After

considering complainant's submissions, the AJ issued an amended Order

dismissing the complaint for the same reasons identified in the AJ's

Order of April 4, 2000. On May 1, 2000, the agency's final order

implemented the AJ's decision. It is this agency decision which the

complainant now appeals.

Claim (1) (false and derogatory information provided to other agencies)

The record reflects that claim (1) raised in the complaint herein was

not raised by complainant in her June 26, 1992 MSPB appeal or in her May

26, 1993 civil action. Moreover, the Commission determines that the

matter raised therein alleges a personal loss or harm regarding a term,

condition, or privilege of complainant's employment. The agency's

decision to dismiss claim (1) is REVERSED. Claim (1) is REMANDED to

the agency for further processing in accordance with the ORDER below.

Claim (2) (termination from agency employment)

The regulation set forth at 29 C.F.R. � 1614.107(a)(3) provides that

the agency shall dismiss a complaint that is the basis of a pending

civil action in a United States District Court in which the complainant

is a party provided that 180 days have passed since the filing of the

administrative complaint, or that was the basis of a civil action decided

by a United States District Court in which complainant was a party.

The record indicates that complainant filed a civil action

(3:93-CV-24-WC) in the United States District Court, Southern District

of Mississippi, Jackson Division, concerning her wrongful termination

and nonselection. The record in evidence contains a copy of the United

States District Court Memorandum Opinion and Order dated May 31, 1995.

Therein, the record indicates that on May 8, 1995, the Court dismissed all

or portions of six out of the eight claims as moot because complainant did

not timely appeal her termination as required by 5 U.S.C. � 7703(b)(2).

Furthermore, the record indicates that the agency provided evidence

that complainant has raised claim (2) in other forums besides her

civil action. Specifically, the record reveals that on June 26, 1992,

the agency dismissed complainant's complaint for having raised the same

issue to the Merit Systems Protection Board (MSPB), TD Case No. 92-9091,

based on wrongful termination and whistle-blowing activity. The record

reveals that on October 13, 1992, the MSPB issued a decision finding

no discrimination and affirmed the agency's decision to terminate

complainant's employment. Therefore, we find the agency's dismissal of

claim (2) to be proper and is AFFIRMED.

Other claims

Furthermore, we note that the agency determined that complainant's

complaint was compromised of other matters such as the denial of her

unemployment benefits following her termination; documentation of the

Official Personnel File with the termination action; a matter regarding

her car financing; and the audit of her 1993 federal taxes were not

like or related to claims in the instant complaint. Based on the record

before us, the Commission determines that complainant did not contact an

EEO Counselor regarding these matters, and they are not like or related

to matters for which she underwent EEO counseling. The agency decision

to dismiss these matters is therefore AFFIRMED.

In summary, the agency's decision dismissing claim (2) (termination) and

the matters relating to car financing; tax audit; unemployment benefits;

documentation in the Personnel File of her dismissal is AFFIRMED. The

agency's decision dismissing claim (1) (false and derogatory information

provided to other federal agencies) is REVERSED. Claim (1) is hereby

REMANDED for further processing in accordance with the Order below.

ORDER

The agency is ORDERED to resume processing of claim (1) (providing

false and derogatory information to other agencies) from the point

where processing ceased. The agency shall acknowledge to complainant

that it has reinstated and resumed processing of claim (1).

A copy of the agency letter of acknowledgment must be sent to the

Compliance Officer as referenced 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

September 12, 2002

__________________

Date