0120064776
10-16-2007
Scott Winters, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Scott Winters,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200647761
Agency No. 060016401227
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 31, 2006, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability (Anxiety attacks, Depression)
when:
1. Complainant was removed from his position with the agency, effective
January 17, 20062.
The agency dismissed the claim on the grounds that complainant had
raised the same matter before the Merit Systems Protection Board (MSPB).
In addition, the agency found that complainant failed to timely contact
an EEO Counselor. Complainant on appeal essentially reiterates the
arguments he made before the agency. He maintains that the reason he did
not contact an EEO Counselor until April 20, 2006, was because he did
not learn of the agency's alleged discrimination until March 6, 2006,
when, during an MSPB pre-hearing conference concerning his removal, an
agency official (RMO) made statements that led complainant to believe
he was removed because of his disability.
The Commission finds that the complaint was properly dismissed pursuant
to 29 C.F.R. � 1614. 107(a)(4). We note that 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. See 29 C.F.R. � 1614.302(b). EEOC Regulation 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 and 29
C.F.R. � 1614.302 indicates that the complainant has elected to pursue
the non-EEO process. The record reveals that complainant filed an appeal
with the MSPB on January 19, 2006, concerning his removal and on April
28, 2006, an MSPB Administrative Judge (AJ) issued an Initial Decision
on the issue.
The record further reveals that complainant did not raise disability
discrimination as an affirmative defense before the MSPB. Assuming
arguendo that the reason complainant did not raise disability
discrimination when he initially filed his MSPB appeal was because he
only became aware of the discrimination when RMO made an incriminating
statement at the MSPB pre-hearingconference, the record contains
no evidence that complainant subsequently sought to amend his MSPB
complaint to include disability discrimination. In any event,
whether discrimination was raised before the MSPB or not, pursuant
to � 1614.107(a)(4), an agency shall dismiss a complaint where the
complainant has raised the matter in an appeal to the MSPB and � 1614.302
indicates that the complainant has elected to pursue the non-EEO process.
Because complainant raised the issue of his removal before the MSPB,
we AFFIRM the FAD's dismissal of his complaint.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 We agree with the agency's Appeal Brief in which the agency argues that
a second issue, characterized in the FAD as "the agency representative
. . . stated that you would not be able to regain your security clearance
because of your mental disabilities" is more appropriately viewed as
constituting evidence to support complainant's removal claim and is not
a separate and distinct claim.
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0120064776
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064776