01982215
03-04-1999
Sherry L. Dees, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Sherry L. Dees v. Department of Defense
01982215
March 4, 1999
Sherry L. Dees, )
Appellant, )
)
v. ) Appeal No. 01982215
) Agency No. JH-97-033
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. Appellant received the final
agency decision on December 18, 1997. The appeal was postmarked January
12, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that appellant elected to proceed before the
Merit Systems Protection Board rather than through the EEO complaint
process.
BACKGROUND
The record reveals that on March 12, 1997, appellant filed an appeal
before the Merit Systems Protection Board (MSPB) with regard to her
removal from the position of Environmental Protection Technician,
GS-6, effective March 14, 1997. Appellant also raised the issues of her
December 1, 1996 reassignment to the Distribution Branch at DRMO I El Toro
MCAS, the transfer of some of her functions, and harassment due to her use
of sick leave. On July 17, 1997, the MSPB Administrative Judge dismissed
the appeal in response to the agency's cancellation of appellant's
removal. The Administrative Judge ruled that the agency's rescission of
the removal divested the MSPB of jurisdiction. The Administrative Judge
noted that the MSPB has no jurisdiction over appellant's reassignment.
Appellant initiated contact with an EEO Counselor on February 20, 1997.
On August 21, 1997, appellant filed a formal EEO complaint wherein she
alleged that she was discriminated against on the bases of her race
(black), color (black), sex (female) and mental disability (unspecified)
when the management lied about a reduction-in-force in order to transfer
her.
In its final decision, the agency dismissed the complaint on the grounds
that appellant filed a mixed case appeal with the MSPB before she filed
the instant EEO complaint. Thereafter, appellant filed the instant
appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.302(b) provides that an aggrieved person
may initially filed a mixed case complaint with an agency pursuant to
this part or an appeal on the same matter with the MSPB pursuant to 5
C.F.R. �1201.151, but not both.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that the agency shall
dismiss a complaint or a portion of a complaint where the complainant
has raised the matter in an appeal to the Merit Systems Protection Board
and �1614.301 or �1614.302 indicates that the complainant has elected
to pursue the non-EEO process.
The record reveals that appellant filed an appeal regarding her removal,
assignments, and transfers of functions with the MSPB on March 12, 1997.
This appeal was dismissed by the Administrative Judge after the agency
canceled the removal. The Administrative Judge noted that the MSPB
lacked jurisdiction over the remaining issues presented in the appeal.
Appellant filed the instant complaint on August 21, 1997. A review of
the complaint reveals that appellant is alleging that the agency lied
about a reduction-in-force in order to reassign her to the Distribution
Branch at DRMO I El Toro MCAS. Although the issue of the reassignment
was also raised in appellant's MSPB appeal, we note that the MSPB lacked
jurisdiction over that issue. The Merit Systems Protection Board does not
have jurisdiction over reassignments involving no loss in grade or pay.
See Karen Wainwright v. Department of Health and Human Services, EEOC
Appeal No. 01975339 (August 19, 1998). We find that the MSPB's lack
of jurisdiction negates appellant's election to proceed in that forum.
Accordingly, the agency's dismissal of appellant's complaint was improper
and is REVERSED. This matter is hereby REMANDED for further processing
in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations