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