01A21873
08-04-2003
Natalie D. Burch, Complainant, v. Leslie Lenkowsky, Chief Executive Officer, Corporation for National Service, Agency.
Natalie D. Burch v. Corporation for National Service
01A21873
August 4, 2003
.
Natalie D. Burch,
Complainant,
v.
Leslie Lenkowsky,
Chief Executive Officer,
Corporation for National Service,
Agency.
Appeal No. 01A21873
Agency No. 04-01-005
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 9, 2002, concerning 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 appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant filed a formal EEO complaint alleging that she was
subjected to discrimination on the basis of race (Caucasian) when
she was subjected to a hostile work environment which resulted in
her constructive discharge. The agency investigated the complaint,
then provided complainant with a copy of the investigative report
and advised her that she could elect either a hearing before an EEOC
Administrative Judge (AJ) or an immediate final agency decision (FAD).
Complainant elected an immediate FAD. The agency thereafter issued a FAD
finding no discrimination, and included appeal rights to the Commission.
The instant appeal followed.
On appeal, both parties request that the FAD be vacated and the case
returned to the agency for issuance of a new FAD with appeal rights to
the Merit Systems Protection Board (MSPB). Both parties note that the
agency failed to appropriately advise complainant in view of the �mixed�
nature of the alleged discriminatory action.
A �mixed case complaint� is a complaint of employment discrimination filed
with a Federal agency, related to or stemming from an action taken by the
agency against the complainant, which action may 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). Further, the agency is required to inform every
employee who is the subject of an action which is appealable to the MSPB
and who has raised the issue of discrimination �during the processing of
the action,� of his or her right to file a mixed case complaint or to file
a mixed case appeal with the MSPB. Id.; see Gray v. U.S. Postal Service,
EEOC Request No. 05910824 (Dec. 19, 1991); Lauderdale v. Dept. of the
Army, EEOC Request No. 05910033 (Feb. 15, 1991). The agency's decision
on the merits of a mixed case complaint is appealable to the MSPB,
not the EEOC. 29 C.F.R. � 1614.302(d)(1)(ii).
There is no dispute that the agency failed to properly advise complainant
of mixed case procedures, nor that the agency then failed to provide
complainant with appropriate appeal rights. Further, both parties
have requested that the Commission vacate the FAD, remand the case to
the agency for issuance of a new FAD with appropriate appeal rights to
the MSPB. Accordingly, the FAD is VACATED, and the case is remanded
for further action consistent with the Order of the Commission, set
forth below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date in which this decision becomes final,
the agency shall issue a new final agency decision in the above matter,
together with appeal rights to the Merit Systems Protection Board.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
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
August 4, 2003
__________________
Date