01982699
11-03-2000
Ronnie L. Olsen, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Ronnie L. Olsen v. Army and Air Force Exchange Service
01982699
November 3, 2000
.
Ronnie L. Olsen,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 01982699
Agency No. 96-073
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his complaint of unlawful retaliation in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant contends he was subjected to retaliatory constructive
discharge when, effective December 29, 1995, he elected early retirement.
For the reasons set forth below, the Commission VACATES the FAD and
REMANDS the complaint.
Believing he was a victim of retaliatory constructive discharge,
complainant sought EEO counseling and subsequently filed a formal EEO
complaint on February 28, 1996. Inasmuch as such a discharge 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 February 13, 1998, the agency found no retaliatory
constructive discharge, 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.<2> 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
November 3, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2EEOC Regulation 29 C.F.R. � 1614.303(a) provides: "Individuals who have
received a final decision from the MSPB on . . . the appeal of a final
decision on a mixed case complaint under 5 C.F.R. 1201, subpart E and
5 U.S.C. 7702 may petition EEOC to consider that decision."