0120071573
05-03-2007
Miriam E. DeJesus, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Miriam E. DeJesus,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071573
Agency No. 200I06732005101113
DECISION
Complainant filed an appeal with this Commission concerning agency actions
regarding her complaint of unlawful employment discrimination alleging
violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record indicates that complainant was removed from her position on
May 14, 2004. On June 10, 2004, complainant filed an appeal challenging
her removal with the Merit Systems Protection Board (MSPB or Board)
and therein raised claims of discrimination based on national origin,
sex, disability, and age. On August 4, 2004, the MSPB accepted her
appeal as timely and issued an initial decision dismissing the matter
for lack of jurisdiction because she was terminated from an "at-will"
position. Complainant filed a petition for review by the full Board of
this initial decision.
While the petition for review was pending, complainant contacted an EEO
counselor in January 2005, raising discrimination claims with respect
to her removal and when her health insurance coverage was terminated in
November 2004. After she filed a formal complaint, the agency dismissed
the matter for untimely EEO counselor contact. It is not clear why
the agency did not dismiss the removal claim on the basis that it was
pending with the MSPB. In any event, the complainant filed an appeal
with the Commission. In EEOC Appeal No. 01A54470 (September 15, 2005),
the Commission affirmed the dismissal of the complaint.
On September 26, 2005, the MSPB issued its final decision, upholding
the dismissal of complainant's appeal. Complainant filed a timely
petition with the Commission. On March 10, 2006, the Commission issued its
decision in EEOC Petition No. 03A60043. In that decision, the Commission
recognized that the matter should be "unmixed" due to MSPB's decision that
it lacked jurisdiction over complainant's removal, and ordered the agency
to process the matter as an EEO complaint, using the date that complainant
filed her appeal with the MSPB as the date of EEO counselor contact.
Complainant comes to the Commission after receiving a letter from the
agency indicating that it will not process the matter further because
of the decision in EEOC Appeal No. 01A54470. The agency's letter did
not give complainant appeal rights to the Commission. Complainant seeks
to have the Commission's order in EEOC Petition No. 03A60043 enforced.
The Commission finds that, under the circumstances of this case, that
the agency's letter can be construed as a final decision dismissing
the remanded complaint as having been previously decided (dismissed
on the grounds of timeliness) in EEOC Appeal No. 01A54470. See 29
CFR � 1614.107(a)(1). The Commission, however, does not agree. Here,
complainant promptly appealed her removal to the MSPB. At that time,
she had no reason to know that the MSPB would deny jurisdiction over
the matter. Once the MSPB dismissed the matter for lack of jurisdiction,
the agency should have informed complainant of the right to file an EEO
complaint on her discrimination claims. See 29 C.F.R. � 1614.302(b). ("If
a person filed a mixed case appeal with the MSPB instead of a mixed case
complaint and the MSPB dismissed the appeal for jurisdictional reasons,
the agency shall promptly notify the individual in writing of the right
to contact an EEO counselor within 45 days of receipt of this notice
and to file an EEO complaint subject to �1614.107.") It did not do so,
and as a result, there was confusion.
On its face, the EEO counselor contact would appear untimely, except
that the appeal was timely with the MSPB, a fact not recognized by the
agency although it was mentioned in the MSPB's initial decision which the
agency had at the time it dismissed complainant's EEO complaint. Further,
the agency never gave complainant a 45-day notice to contact the EEO
counselor. Even after the Board's final order, the agency should have
informed complainant of her right to file a complaint, notwithstanding
the Commission's earlier decision. The agency does not have to wait for
the Commission to unmix a matter that has been appealed to the MSPB.
Thus, the Commission's order in Petition No. 03A60043 was correct and
the agency is ordered to comply with the order as set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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 (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
May 3, 2007
__________________
Date
2
0120071573
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071573