01985572
02-03-2000
Tyrone Holland, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Tyrone Holland, )
Complainant, )
)
v. ) Appeal No. 01985572
Alexis M. Herman, ) Agency No. 8-04-080
Secretary, )
Department of Labor, )
Agency. )
____________________________________)
DECISION
On June 30, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 4, 1998,
pertaining to his 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. <1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of disability (nervous
condition) when:
On October 3, 1997, complainant received an official notice of
termination;
On June 10, 1997, complainant was accused of being late to a mandatory
training session;
Complainant was told that his transcript �looked like it had been pieced
together� and then was accused of refusing to furnish an official copy
of his transcript to the Personnel Department;
Complainant was accused of the improper use of a government vehicle after
a temporary duty (TDY) review to Augusta, Georgia the week of July 21,
1997;
Complainant was accused of taking frequent and lengthy breaks; and
Complainant was harassed daily by his supervisor, who talked
condescending to him causing humiliation, belittlement, low self esteem,
and aggravation to his already weak nervous condition.
The agency dismissed complainant's complaint on the grounds that complaint
has raised the same matter in an appeal to the Merit Systems Protection
Board (MSPB).
On appeal complainant claims that he did not pursue the EEO process
earlier because he had previously filed an MSPB appeal and it was his
understanding that he could not file both an MSPB appeal and an EEO
complaint at the same time. Complainant contends that the MSPB dismissed
his appeal on jurisdictional grounds and he states that he now chooses
to pursue the EEO process to resolve his complaint.
The record contains a copy of complainant's MSPB appeal dated November
13, 1997. A review of the record shows that the MSPB appeal does address
the same issues involved in complainant's EEO complaint; however, the
agency has failed to include a copy of a final MSPB decision, which
complainant contends shows that the MSPB dismissed his complaint on
jurisdictional grounds. Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.302), requires
an aggrieved employee to elect between filing a mixed-case appeal or a
mixed-case complaint with the agency. We note that if the MSPB dismissed
complainant's appeal on jurisdictional grounds, the complaint no longer
satisfied the definition of a mixed-case complaint and the dismissal of
the present complaint on the grounds that complainant had filed an appeal
with the MSPB would be improper. See Weaver v. Department of the Navy,
EEOC Request No. 05900230 (April 26, 1990).
Accordingly, the agency's final decision is VACATED and the matter is
REMANDED for further processing pursuant to the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine if
complainant's MSPB appeal was dismissed on jurisdictional grounds.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing or a new FAD regarding
complainant's complaint.
A copy of the agency's notice of processing or new FAD must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
February 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.