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.