0120122407
10-10-2012
Donna J. Deem, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Donna J. Deem,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120122407
Agency No. HS-10-FEMA-00060
DISMISSAL
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 2012, regarding her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Administrative Assistant at the Agency's Region 9 Grants Division facility in Oakland, California. On April 8, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (Post Traumatic Stress Disorder), age (61), and reprisal for prior protected EEO activity when she was subjected to harassment and constructive discharge. In support of her claim of discrimination, Complainant alleged that the following events occurred:
1. From January 11-15, 2010, Complainant was placed on Absent Without Lease (AWOL) status while under the care of a Department of Veterans Affairs (VA) physician.
2. On January 22, 2010, Complainant's supervisor (Sl) requested a meeting to discuss Complainant's leave, denied her request to have her daughter present, and stated in a low voice, "you should not speak to anyone in the Region about what is going on between us in an attempt to get sympathy for yourself."
3. On unspecified dates, Sl yelled at Complainant in the presence of other employees and questioned her about the things that she had done or had not done, causing friction and tension in the office.
4. She felt she was being forced into retirement because of her illness and the way others reacted around her.
5. On an unspecified date, S1 was given access to her work-related and personal emails.
6. On unspecified dates, S1 nominated her friends for monetary awards for work performed by Complainant and did not nominate Complainant for monetary awards even though she was asked to provide instructions on payroll and guidance on policies to other HR employees.
The Agency investigated the complaint. Following the investigation, Complainant was issued a final decision finding no discrimination. This appeal followed.
While the appeal was pending, the Agency withdrew its final decision and re-issued the final decision finding no discrimination. However, in the new final decision, the Agency noted that Complainant alleged a claim of constructive discharge. As such, the matter is considered to be a mixed case. Therefore, the Agency's final decision dated August 16, 2012, provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB), not the EEOC. We note that Complainant has filed an appeal with the MSPB as directed by the Agency in its August 16, 2012 final decision.
Upon review, we dismiss the matter for lack of jurisdiction. The matter is currently before the MSPB. If the Board determines that it has jurisdiction over the case at hand and renders a decision on the issue of discrimination, Complainant may petition the Commission to review the MSPB's decision regarding determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq.
The Commission's regulations governing the processing of mixed case complaints require that, should the MSPB dismiss an appeal from the Agency's processing of a mixed case complaint for lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed case complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Therefore, in the event the Board denies Complainant's appeal, the Agency is required to process the complaint of discrimination as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq.
Accordingly, the current appeal is dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 10, 2012
__________________
Date
2
0120122407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122407