Raymond H. Swentek, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 7, 2001
01991488 (E.E.O.C. Dec. 7, 2001)

01991488

12-07-2001

Raymond H. Swentek, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Raymond H. Swentek v. Department of the Army

01991488

December 7, 2001

.

Raymond H. Swentek,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01991488

Agency No. BGFPPO9507FO690

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful discrimination in violation

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 appeal is accepted pursuant to 29 C.F.R. 1614.405.

Complainant contends he was the victim of discrimination based on his

sex, race (Caucasian), color (white), religion (Jewish), national

origin (Polish), disability (chronic neck pain), and age (over 40)

when management officials canceled a position complainant applied for

and denied complainant restoration rights.

For the reasons set forth below, the Commission VACATES the FAD and

REMANDS the complaint. Believing he was a victim of discrimination,

complainant sought EEO counseling and

subsequently filed a formal EEO complaint on August 7, 1995. Inasmuch as

such failure to restore an employee following a full or partial recovery

from a compensable injury<1> could have been appealed directly to the

Merit Systems Protection Board (MSPB), the EEO complaint was a "mixed

case complaint" under 29 C.F.R. 1614.302(a). At the conclusion of the

investigation, complainant was informed of his right to request a hearing

before an EEOC Administrative Judge or alternatively, to receive a final

decision by the agency. Complainant requested that the agency issue a

final decision.

By FAD issued November 9, 1998, the agency found no discrimination, and

erroneously provided appeal rights to the Commission, resulting in the

instant appeal. EEOC Regulation 29 C.F.R. � 1614.302(d)(3) provides:

At the time that the agency issues its final decision on a mixed case

complaint, the agency shall advise the complainant of the right to appeal

the matter to the MSPB (not EEOC) within 30 days of receipt and of the

right to file a civil action as provided at 1614.310(a).

Consequently, we find that this case is not properly before the Commission

at this time. See Kryfka v. Department of Transportation, EEOC Appeal

No. 01970060 (May 18, 1999); Llabres v. Department of Transportation,

EEOC Appeal No. 01944908 (December 1, 1995), request to reconsider denied,

EEOC Request No. 05960255 (November 13, 1997). Accordingly, we VACATE

the FAD and REMAND the complaint in accordance with this decision and

the following ORDER.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall issue a new final decision with appropriate appeal rights

to the Merit Systems Protection Board, in accordance with EEOC Regulation

29 C.F.R. 1614.302(d)(3). The agency shall submit a copy of the re-issued

final decision to the EEOC Compliance Officer as listed 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

December 7, 2001

__________________

Date

1 See 5 C.F.R. � 1201.3(a)(12). We expressly decline to decide the issue

of whether complainant is an employee fully or partially recovered from

a compensable injury. That issue is more properly within the purview

of the MSPB.