0120122429
10-24-2012
Jeffrey Brown, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Land Management), Agency.
Jeffrey Brown,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120122429
Agency No. BLM-09-0472
DECISION
On May 14, 2012, Complainant filed an appeal with the Equal Employment Opportunity Commission asking for review the Agency's failure to comply with the Initial Decision issued by the Merit Systems Protection Board (MSPB) dated January 31, 2012, concerning his claim of discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
The record indicated that Complainant was an Information Technology Specialist, GS-14, in the Division of Information Resource Management (IRM), at the Agency's office in Washington, D.C. Complainant filed a formal complaint on November 9, 2009, alleging discrimination on the bases of age (not specified) and reprisal for prior protected EEO activity, when effective September 3, 2009, Complainant was forced to resign.
The matter was investigated. Subsequently, on December 14, 2010, the Agency issued Complainant a Final Decision on the matter providing him with appeal rights to the MPSB. A review of the decision revealed that the Agency captioned the Final Decision for the wrong EEO complaint number. On June 9, 2011, the Agency notified Complainant that they provided him with a decision with the wrong Agency number. On June 26, 2011, Complainant contacted the Agency requesting that it reissue him a new final decision with appeal rights. By letter dated August 31, 2011, the Agency denied the request.
On September 30, 2011, Complainant filed an appeal with the MSPB from the Agency's final decision. The MSBP Administrative Judge (AJ) issued a Notice to Show Cause advising Complainant that the MSPB may not have jurisdiction over his appeal. In response to the Notice, the Agency argued that the matter should be dismissed for lack of jurisdiction. The MSPB AJ also noted that Complainant's appeal to the MSPB was untimely filed. By decision dated January 31, 2012, the MSPB AJ issued her decision dismissing the matter. The MSPB AJ noted in a footnote that because she is finding that the matter is dismissed for lack of jurisdiction, she did not address the Agency's argument on timeliness.
The MSBP AJ concluded that Complainant failed to establish by preponderant evidence that his retirement was involuntary. As such, she dismissed Complainant's appeal for lack of jurisdiction. Complainant filed an appeal with the Commission noting that the Agency has failed to now treat the complaint as a non-mixed matter. As such, Complainant requested that the Commission order the Agency to process the matter as a non-mixed complaint.
The Agency responded to the appeal. Initially, the Agency argued that the Commission should affirm the finding that Complainant was not subjected to discrimination when he retired. Subsequently, the Agency submitted a second response stating that Complainant's appeal of the MSPB decision was filed in an untimely manner. Further, the Agency noted Complainant's initial appeal to the MSPB was also filed in an untimely manner. Therefore, the Agency argued that Complainant's rights had expired and therefore, it should not process the complaint.
ANALYSIS
As noted above, the MSPB dismissed the matter for lack of jurisdiction and did not address the Agency's argument that the matter should be dismissed for untimely filing of the appeal with MSPB. When the MSPB has denied jurisdiction in matters such as this case, the Commission has held that there is little point in continuing to view as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Rather, it is treated as a "non-mixed" matter and processed accordingly. See Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990) (sets forth the policy of the Commission assuming jurisdiction over cases dismissed by the MSPB for lack of jurisdiction); Phillips v. Dep't of Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b) & (c)(ii). Where the MSPB dismisses for lack of jurisdiction, the Agency must resume processing the matter from the point processing ceased under 29 C.F.R. Part 1614. Here, the MSPB found that it lacked jurisdiction to review Complainant's reprisal and discrimination claims. Accordingly, the Agency must resume processing of the matter in accordance with the Notice to Parties below.
CONCLUSION
Accordingly, the Agency is ORDERED to process the matter as set forth below.
NOTICE TO PARTIES
Complainant is advised that by operation of 29 C.F.R. � 1614.302(c)(2)(ii), the Agency is required to process the allegation of discrimination as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded matter within 15 calendar days of the date this decision becomes final. The Agency shall issue to the Complainant a copy of the investigative file and also shall notify the petitioner of the right to a hearing before an EEOC Administrative Judge within 30 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 the Complainant's request. Complainant has the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that this decision is received.
The Agency shall submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the Agency has complied with the Notice above.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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 24, 2012
__________________
Date
2
0120122429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122429