01A10200
03-27-2001
Stella Molinares, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Stella Molinares v. Department of Defense
01A10200
March 27, 2001
.
Stella Molinares,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A10200
Agency No. JQ00028
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 7, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In a
complaint dated January 27, 2000, complainant claimed she was subjected to
discrimination on the bases of her race (Hispanic) and sex (female) when:
On September 30, 1999 complainant was displaced from the agency as a
result of a Reduction In Force (RIF); and
Complainant should not have been separated from the agency because there
were positions for which she applied and was qualified for.
According to the record, complainant, on December 23, 1999, filed an
appeal to the Merit Systems Protection Board (MSPB) alleging that on
September 30, 1999, she was displaced from the agency as a result of
a Reduction In Force (RIF) and that she should not have been separated
from the agency because there were positions for which she applied and
was qualified for. The record further reveals, that complainant, during
pre-complaint counseling, received rights informing her that she could
either file an appeal with the MSPB or the EEOC but not both. Furthermore,
complainant, in her appeal to the MSPB, claimed that the only two
individuals displaced through the RIF were minority females and that a
Caucasian female was selected for a position for which she applied.
In a decision dated September 7, 2000, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), which in pertinent part,
states the agency shall dismiss a complaint where complainant has raised
the matter to the Merit Systems Protection Board and � 1614.301 or �
1614.302 indicates that complainant has elected to pursue the non-EEO
process. Specifically, the agency found that because complainant filed
an appeal to the MSPB prior to filing her EEO complaint, complainant
made a formal election to pursue the matter before the MSPB which is
not the EEO process.
After careful review of the entire record, the Commission finds that
the agency properly dismissed complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(4). The Commission finds that complainant, in filing
her appeal to the MSPB on December 23, 1999, made a formal election
to proceed in that forum with regard to this matter. Consequently,
complainant was divested of the right to file a formal EEO complaint
with the Commission on this very same matter. Accordingly, the agency
properly dismissed complainant's complaint.
For the reasons set forth herein, the Commission hereby AFFIRMS the
agency's decision dismissing complainant's complaint.
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 (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
March 27, 2001
__________________
Date