Miriam E. DeJesus, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 3, 2007
0120071573 (E.E.O.C. May. 3, 2007)

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