01A32315_r
06-30-2004
Shirley A. Saiz, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Shirley A. Saiz v. Department of the Army
01A32315
June 30, 2004
.
Shirley A. Saiz,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32315
Agency Nos. BHEFFO0102B0070, BHEFFO0204C0140
Hearing No. 310-A3-5390X
DECISION
On March 11, 2003, complainant filed one appeal with this Commission
from the agency's February 6, 2003 decision dismissing her complaint in
Agency No. BHEFFO0102B0070 and the agency's February 4, 2003 Notice of
Partial Dismissal in Agency No. BHEFFO0204C0140. The agency's dismissal
and partial dismissal were made pursuant to 29 C.F.R. � 1614.107(a)(4),
on the grounds that the dismissed claims were before the Merit Systems
Protection Board (MSPB).
Agency No. BHEFFO0204C0140
In its Notice of Partial Dismissal of Agency No. BHEFFO0204C0140 the
agency dismissed a portion of the complaint pursuant to 29 C.F.R. �
1614.107(a)(4). Complainant was also informed that the partial dismissal
was reviewable by an EEOC Administrative Judge (AJ) if a hearing was
requested on the remaining accepted issues. The decision informed
complainant that there was no right to appeal until final action on the
complaint was taken. Subsequently, the parties entered into a settlement
agreement on February 20, 2003 settling the entire complaint. Therefore,
the appeal of Agency No. BHEFFO0204C0140 is DISMISSED.
Agency No. BHEFFO0102B0070
In its February 6, 2003 decision dismissing Agency No. BHEFFO0102B0070
the agency identified the issues of the complaint as follows:
a. Complainant was discriminated against on the bases of race (Hispanic),
(disability), sex (female), and reprisal, when management created a
hostile environment.
b. Complainant was discriminated against on the bases of race
(Hispanic), (disability), sex (female), and reprisal, when complainant
was denied a noncompetitive promotion to GS-07 in June 2001.
c. Complainant was discriminated against on the basis of religion
(Catholic) when complainant's supervisor did not approve her request
to adjust her lunch hour to attend Catholic Mass held in Darnall Army
Community Hospital when the mission permits.
Complainant requested a hearing before an AJ in July 2002. While the
hearing request was pending before the AJ, the agency issued its February
6, 2003 decision of dismissal. In its dismissal, the agency stated that
on June 4, 2002, complainant filed an MSPB appeal concerning the same
claims. On February 5, 2004, the AJ dismissed the matter. In dismissing
the matter, the AJ noted that the issues raised were before the MSPB.
The AJ further noted that the complaint was on appeal to the Commission.
The AJ accordingly dismissed the complaint.
The Commission notes that the agency's issuance of its February 6, 2003
decision while complainant's request for a hearing was pending before
the AJ was improper. Once complainant requested a hearing, the AJ, and
not the agency, had jurisdiction over the complaint. The appropriate
action for the agency to have taken would have been for the agency to
have filed a motion with the AJ, noting the agency's position that the
same matter was pending before the MSPB. Nevertheless, because the
AJ has dismissed the matter, we will under the instant circumstances
consider whether the complaint was properly dismissed.
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. The Commission finds that the agency's
dismissal of Agency No. BHEFFO0102B0070 was proper. The record
reveals that in complainant's April 16, 2002<1> appeal to the MSPB (
Docket No. DA-0432-02-0393-I-1), complainant raised matters inextricably
intertwined with the instant complaint. We note that the MSPB issued an
Initial Decision on the matter on December 11, 2002. Therefore, we find
that complainant made an election to pursue the matter through the MSPB.
Complainant's appeal of agency number BHEFFO0204C0140 is DISMISSED.
The agency's decision dismissing agency number BHEFFO0102B0070 is
AFFIRMED.
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
June 30, 2004
__________________
Date
1The only record that the agency submitted
concerning complainant's MSPB appeal was an April 16, 2002 appeal.
There was no record submitted by the agency regarding any MSPB appeal
filed by complainant on June 4, 2002, as indicated in the agency's
February 6, 2003 decision.