Wayland Mitchell, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
01982027_r (E.E.O.C. Apr. 14, 1999)

01982027_r

04-14-1999

Wayland Mitchell, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Wayland Mitchell, )

Appellant, )

)

v. ) Appeal No. 01982027

) Agency No. ELOR98003

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

The record reveals that on November 8, 1997, appellant filed an appeal

before the Merit Systems Protection Board (MSPB) with regard to his

suspension for 30 days without pay for sexual harassment. Therein

appellant raised allegations of discrimination. On November 10, 1997,

appellant filed a formal EEO complaint in which he alleged that he was

discriminated against on the bases of his race (African-American) and age

(55) when he was suspended for 30 days without pay for sexual harassment.

During a pre-hearing conference on January 28, 1998, appellant withdrew

his MSPB appeal. In its final decision, the agency dismissed appellant's

EEO complaint on the grounds that appellant filed a mixed case appeal

concerning his removal with the MSPB before he filed the instant EEO

complaint, thereby electing to use that forum to address his concerns.

On appeal, appellant argues that because his October 16, 1997 initial EEO

Counselor contact occurred prior to his appeal to the MSPB, the Commission

should find that he elected to use the EEO process to adjudicate his

complaint.

In response, the agency asserts that, for the purposes of 29

U.S.C. �1614.302(b), the election as to which forum is to be utilized in

a mixed case complaint is determined on the basis of where the complainant

first files a complaint. As appellant filed his MSPB appeal prior to the

date he filed his formal EEO complaint, the agency asserts that he elected

to proceed before the MSPB and, therefore, cannot utilize the EEO process.

EEOC Regulation 29 C.F.R. �1614.302(b) provides that an aggrieved person

may initially filed a mixed case complaint with an agency pursuant

to this part or an appeal on the same matter with the MSPB pursuant

to 5 C.F.R. �1201.151, but not both. We find, therefore, that the

election provision is based on when a formal complaint is filed rather

than when initial EEO Counselor contact occurs. EEOC Regulation 29

C.F.R. �1614.107(d) provides that the agency shall dismiss a complaint or

a portion of a complaint where the complainant has raised the matter in

an appeal to the Merit Systems Protection Board and �1614.301 or �1614.302

indicates that the complainant has elected to pursue the non-EEO process.

The record reveals that appellant filed an MSPB appeal regarding his

suspension on November 8, 1997. Appellant subsequently withdrew his MSPB

appeal on January 28, 1998. Appellant filed the instant EEO complaint

on November 10, 1997. The fact that appellant subsequently withdrew his

MSPB appeal did not negate his prior election. See Hammond v. General

Services Administration, EEOC Request No. 05940428 (August 25, 1994);

Drisdom v. United States Postal Service, EEOC Appeal No. 01976729 (July

24, 1998); Dean v. United States Postal Service, EEOC Appeal No. 01942928

(June 29, 1994). Therefore, we find that appellant's prior appeal to

the MSPB constituted an election of forum and the agency's dismissal on

that ground was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 14, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations