01985644
12-28-1999
Nancy Rothschild, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Nancy Rothschild v. Department of the Treasury
01985644
December 28, 1999
Nancy Rothschild, )
Complainant, )
)
v. ) Appeal No. 01985644
Lawrence H. Summers, ) Agency No. 98-4216
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 13, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 13, 1998, pertaining
to 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.<1>
Complainant was removed from her job on October 11, 1996, for conduct
prejudicial to the government. Complainant appealed her removal to
the Merits Systems Protection Board (MSPB). As affirmative defenses,
complainant alleged that the agency's action was based on her gender
(female), religion (Jewish), and in reprisal for raising sexual harassment
concerns regarding a senior employee. In a May 7, 1997 decision, the
MSPB reversed the agency's removal, ordered complainant to be reinstated
retroactively, and ordered the agency to pay the appropriate back pay,
interest and benefits due to complainant. However, the Board found
that complainant did not meet her burden of proof as to her affirmative
defenses alleging discrimination. Complainant was given the right to
petition the EEOC for review of the Board's decision on her discrimination
claims, but did not do so.<2>
Complainant sought EEO counseling in May 1998, and filed a formal
complaint on May 22, 1998. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of sex (female) and in
retaliation for prior EEO activity when:
On October 11, 1996, complainant was removed from the agency seven
weeks sooner than the male employee involved in the same incident, and
complainant was not given the opportunity to resign from the agency in
lieu of termination;
In February 1997, complainant was denied medical benefits because
she was no longer employed by the agency, and she was forced to have
emergency surgery;
Complainant was not informed until May 17, 1997, that the agency was
returning her to duty.
The agency dismissed issue (1) on the grounds that complainant raised
the same matter in an appeal to the MSPB and also on the grounds that
it is moot. The agency dismissed issues (2) and (3) because of their
relation to the removal action and on the grounds that they failed to
state a claim. The agency further dismissed issue (3) on the grounds
that it was moot.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency shall
dismiss a complaint where the complainant has raised the matter in an
appeal to the MSPB.
After reviewing the evidence, the Commission finds that the agency's
action dismissing complainant's EEO complaint was proper. In issue (1)
of her formal EEO complaint, complainant contends that her removal from
the agency involved disparate treatment based on her sex. Since this
involves complainant's removal, an issue raised and decided by the MSPB
on the merits, complainant cannot raise this issue again in a formal
EEO complaint.
With regard to issues (2) and (3), we find that the termination and
reinstatement of health benefits and the notice of reinstatement
are inextricably intertwined with the removal action. In this case,
complainant was awarded reinstatement to her position and the benefits
that came with that reinstatement as a result of the MSPB decision
reversing complainant's removal. Therefore, we find that the matters
raised in issues (2) and (3) involve the enforcement of a decision issued
by the MSPB, a matter outside the purview of the EEO process.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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:
December 28, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The agency filed a petition for review of the Board's initial decision
that reversed complainant's removal; the petition was denied.