01a32202
07-09-2003
Vickie C. Lykins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Vickie C. Lykins v. Department of the Air Force
01A32202
July 9, 2003
.
Vickie C. Lykins,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A32202
Agency No. AL900030514
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 21, 2003, 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 her December 10, 2002 formal complaint, complainant alleged that
she was subjected to discrimination on the bases of sex (female), and in
reprisal for prior EEO activity when, on July 16, 2002, she became aware
that her former third level supervisor received a lesser punishment than
she received.
In its January 21, 2003 final decision, the agency dismissed the complaint
on the grounds that complainant filed an appeal of the same matter with
the Merit Systems Protection Board (MSPB) prior to her EEO complaint.
The agency found that, although complainant's claim as stated did not
specifically identify her removal, all matters raised in her formal
EEO complaint were incorporated with her February 5, 2002 MSPB appeal
related to her removal, and that the MSPB issued a November 22, 2002
decision sustaining that removal (MSPB Docket No. 0752-02-0251-I-1).
An aggrieved person may initially file a mixed case complaint<1>
with an agency or may file a mixed case appeal directly with the MSPB,
pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b).
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 and, under 29 C.F.R. � 1614.302, has elected
to pursue the non - EEO process.
Here, it is clear from the record that complainant's MSPB appeal and EEO
complaint concern the agency's decision to remove her from the agency
and that complainant appealed to MSPB before filing her EEO complaint.
Therefore, as complainant's formal complaint raised the same matter as
that raised in her previous appeal to the MSPB, it is properly dismissed
under 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's final decision dismissing the subject complaint
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
July 9, 2003
__________________
Date
1A mixed case complaint is a complaint of
employment discrimination filed with a federal agency related to or
stemming from an action that can be appealed to the MSPB. 29 C.F.R. �
1614.302(a)(1).