01A10139_r
06-25-2002
William R. Miller, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
William R. Miller v. U.S. Department of the Interior
01A10139
June 25, 2002
.
William R. Miller,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A10139
Agency No. FNP-00-028
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated August 23, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In his formal complaint, filed on March 31, 2000, complainant claimed
that he was subjected to discrimination on the bases of race, sex, age,
and disability, when in December 1999, his request for a wage adjustment
was ignored and he was told to quit his job if he did not like it.
The agency dismissed the complaint on the grounds that complainant raised
the same matter in an appeal to the Merit System Protection Board (MSPB).
The agency determined that complainant elected to pursue his complaint
in the MSPB forum, finding that complainant filed his MSPB appeal on
April 4, 2000, prior to filing his EEO complaint.
Complainant now appeals this determination. In response, the agency
acknowledges that complainant filed his EEO complaint prior to filing
the MSPB appeal, in contrast to the finding in its final decision,.
Nonetheless, the agency avers that because the MSPB appeal is currently
under review, by virtue of an Acknowledgment Order being issued by the
MSPB Administrative Judge on April 24, 2000, the instant complaint is
dismissed �without prejudice.� The agency further informs complainant
that if he is dissatisfied with the decision on his MSPB appeal, he can
appeal that decision to the Commission.
A 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). An aggrieved person may
initially file a mixed case complaint 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). 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 29 C.F.R. � 1614.302 indicates
that the complainant has elected to pursue the non - EEO process.
The agency must inform the complainant that he may not file both an
EEO complaint and an MSPB appeal , and that whichever is filed first,
shall be considered an election to proceed in that forum. See Dillion
v. U.S. Postal Service, EEOC Appeal No. 01981358 (December 23,
1998)(citing Milewski v. U.S. Postal Service, EEOC Request No. 05920429
(June 11, 1992). The Commission has held that where an agency failed in
its duty to inform complainant of his election rights, the complainant
cannot be deemed to have made a valid and informed election to proceed
in the MSPB forum. See Zuniga v. U.S. Postal Service, EEOC Request
No. 05920857 (April 26, 1993). However, where a complainant pursues
his claim in both forums, the adjudication of the case on the merits by
the MSPB is deemed tantamount to an election of remedies. See Davis
V. Department of Veterans Affairs, EEOC Appeal No. 01955519 (July 31,
1996)(citing Khera v. Department of Defense, EEOC Request No. 05920280
(April 23, 1992).
The Commission determines that review of the record confirms that
complainant raised the same matters in both the instant complaint and
his MSPB appeal, and that he filed his EEO complaint on March 31, 2000,
four days prior to filing his MSPB appeal on April 4, 2000. Further
review of the record also shows that complainant was not advised of his
election rights during EEO counseling. Instead, the EEO Counselor's
report merely reflects that complainant had not filed an MSPB appeal.
Consequently, we find that complainant cannot be deemed to have made an
informed election to pursue the MSPB forum. Moreover, we find that the
issuance of an Acknowledgment Order by the MSPB Administrative Judge is
not an �adjudication of the case on the merits,� and cannot be viewed
as �tantamount to� an election. In this regard, we note that there is
no evidence of record to show any further adjudication by the MSPB on
this case. Therefore, given that complainant filed his EEO complaint
prior to filing his MSPB appeal, we find that he �elected� the EEO forum.
Accordingly, for the reasons set forth above, we find that the agency
improperly dismissed the instant complaint. The agency's dismissal is
hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 25, 2002
__________________
Date