01992235_r
03-26-2001
Teresa Gladney, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Teresa Gladney v. Department of Defense (Defense Finance and Accounting
Service)
01992235
March 26, 2001
.
Teresa Gladney,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01992235
Agency No. DFAS-CL-NORF-97-003
DECISION
Complainant filed a formal complaint of discrimination
January 3, 1997, alleging harm on the bases of race
(African-American/Irish-American/Indian), color (medium brown), sex
(female), and disability (herniated disc and depression) when she was
terminated in November 1996. In early 1997, the agency dismissed the
complaint for stating the same claim raised with the Merit Systems
Protection Board (MSPB), and complainant appealed to this Commission,
docketed as EEOC Appeal No. 01972580.
In the prior appeal, the Commission vacated the agency's decision and
remanded the complaint for a supplemental investigation. See Gladney
v. Department of Defense, EEOC Appeal No. 01972580 (May 18, 1998).
Specifically, the Commission requested evidence that the MSPB accepted
jurisdiction over the mixed-case appeal. On remand, the agency issued a
new decision, dated June 2, 1998, dismissing the complaint for alleging
the same matters previously raised before the MSPB. Complainant filed
the present appeal from the June 2, 1998 decision.
The agency may dismiss complaints alleging the same matters raised before
the MSPB where complainant elects the non-EEO process. See 29 C.F.R. �
1614.107(a)(4). Complainant clearly elected to pursue her termination
in a mixed-case appeal with the MSPB. The supplemented record contains a
decision from the MSPB addressing complainant's termination. The decision
addressed the claims of discrimination, and provided complainant with
the right to review the entire decision before the full Board or the
discrimination issues with the Commission. There is no evidence to
indicate complainant sought review with this Commission. Accordingly,
the agency's dismissal is AFFIRMED.
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 26, 2001
__________________
Date