01982750
03-18-1999
James W. Deaton, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
James W. Deaton v. Department of Agriculture
01982750
March 18, 1999
James W. Deaton, )
Appellant, )
)
v. ) Appeal No. 01982750
) Agency Nos. 970732, 970876
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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., and the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq. The agency was unable to supply a copy of a certified
mail return receipt or any other material capable of establishing the date
appellant received the agency's final decision. Accordingly, since the
agency failed to submit evidence of the date of receipt, the Commission
presumes that appellant's appeal was filed within thirty (30) days of
receipt of the agency's final decision. See, 29 C.F.R. �1614.402.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it raised matters which appellant had
appealed to the Merit Systems Protection Board (MSPB).
BACKGROUND
Appellant contacted an EEO counselor regarding allegations of
discrimination. Specifically, appellant alleged that he was discriminated
against when (1) he was issued a suspension from January 19, 1995
through February 17, 1995 and (2) he was terminated January 20, 1996.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on May 26, 1997 and July 1, 1997 respectively, appellant
filed formal complaints alleging that he was the victim of unlawful
employment discrimination on the bases of reprisal and disability
(unspecified).
On January 30, 1998, the agency issued a final decision dismissing
appellant's complaints on the grounds that the complaints raised matters
which had been appealed to the MSPB.
ANALYSIS AND FINDINGS
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). EEOC Regulation 29 C.F.R. �1614.107(d)
provides that an agency shall dismiss a complaint or a portion of 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.
In the instant case, the agency contends that appellant's appeal should
be dismissed on the grounds that the complaints that gave rise to the
instant appeal, discussed matters which appellant had previously raised
in an appeal to the MSPB. The agency argues that the appellant cannot
now pursue the EEO process simply because he was unhappy with the outcome
of the MSPB proceeding. The agency, however, has failed to provide the
Commission with a copy of appellant's appeal to the MSPB, a copy of the
Board's decision or any other relevant documentation in that regard.
Therefore, the Commission cannot make an independent determination
concerning the agency's articulated reasons for dismissing appellant's
complaints. For this reason, we must vacate the agency's final decision
as to these allegations and remand them for supplementation of the
record.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaints
was improper, and is hereby VACATED. The complaints are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to supplement the record with documentation
concerning appellant's alleged appeals to the MSPB regarding his
suspension and his termination by the agency. At a minimum, the
agency shall provide copies of the following documents regarding
appellant's suspension and termination: notices of proposed suspension
and removal; decision letters on appellant's suspension and removal;
appellant's MSPB appeal; and, if applicable, the MSPB's initial and final
decisions thereon. Thereafter, the agency shall issue a final decision.
The supplemental investigation and issuance of the final decision must
be completed within sixty (60) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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:
March 18, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations