01992671
09-15-1999
Myra B. Burton, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Myra B. Burton v. Department of the Air Force
01992671
September 15, 1999
Myra B. Burton, )
Appellant, )
) Appeal No. 01992671
v. ) Agency No. KHOF97525
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor and for addressing
the same issue which has been previously adjudicated in the Merit Systems
Protection Board (MSPB) appeal process.
BACKGROUND
Appellant filed a formal complaint on August 8, 1997, alleging
discrimination on the bases of sex (female), race (Black), and physical
disability (broken ankle, an on-the-job injury) when:
1) from December 1987 through April 1994, appellant was on leave without
pay (LWOP) due to complications from her on-the-job injury sustained on
January 30, 1987;
2) on April 25, 1994, appellant was involuntarily terminated for excessive
absenteeism;
3) on no specific date, appellant's second-level supervisor's conversation
with appellant's doctor was allegedly overheard by everyone in the area;
and
4) on no specified date, appellant's second-level supervisor allegedly
spoke inappropriately to appellant's child on the telephone.
The appellant's complaint was subsumed in a class complaint on November
21, 1997. The class complaint was dismissed on October 20, 1998, for
failure to meet class certification. Therefore, appellant's complaint
was processed by the agency in accordance with EEOC Regulation 29
C.F.R. �1614.106(d). In its FAD, the agency dismissed the complaint
finding that the allegations occurred from December 1987 to April 1994.
Appellant contacted an EEO Counselor on June 24, 1997. Therefore,
the agency found that appellant had untimely contacted an EEO Counselor
and dismissed appellant's complaint pursuant to 29 C.F.R. �1614.107(b).
The agency went on to state that appellant raised this complaint before
the MSPB in her appeal of the agency's decision to remove appellant
due to excessive absenteeism effective April 25, 1994. The MSPB
judge affirmed the agency's action on September 13, 1994, and denied
appellant's request for review on December 6, 1994. Accordingly, the
agency dismissed appellant's complaint for addressing the same issue
which has been previously adjudicated in the MSPB appeal process.
This appeal followed.
ANALYSIS AND FINDINGS
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). EEOC Regulation
29 C.F.R. ��1614.107(d) provides that an agency shall dismiss a complaint
or a portion of a complaint where the complainant has raised the matter
in an appeal to the MSPB.
Appellant raised allegations pertaining to her removal and the
circumstances surrounding it in her appeal to MSPB of the agency's action.
On September 13, 1994, MSPB issued appellant a decision which affirmed
the agency's removal of appellant and found that appellant was not
discriminated against based on her disability. Appellant petitioned MSPB
to review their initial decision. The Board denied the petition when
it issued its final order on December 6, 1994. At that time, appellant
was notified of her right to have the MSPB decisions reviewed by the
Commission but there is no evidence that appellant took such an action.
Upon review of the file, we find that appellant raised allegations (1)
- (4) in her appeal to MSPB. Therefore, the Commission finds that the
agency's FAD was proper when it dismissed appellant's complaint pursuant
to 29 C.F.R. �1614.107(d).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations