0120111126
02-10-2012
Mary C. Raco, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Mary C. Raco,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120111126
Agency No. PHI100752SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 19, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Claims Examiner at the Agency’s facility in Philadelphia,
Pennsylvania.
On July 20, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of reprisal for
prior protected EEO activity when she was not afforded a last chance
agreement before she was terminated from her position on June 30, 2010.
The Agency dismissed the complaint, pursuant to 29
C.F.R. §1614.107(a)(4), because Complainant elected to pursue her
termination before the Merit Systems Protection Board (MSPB). The record
shows that Complainant filed her appeal with the MSPB on July 8, 2010,
before she filed her EEO complaint. On November 19, 2010, the MSPB
issued a decision which mitigated Complainant’s removal to a 30-day
suspension. The decision noted that although Complainant did not assert
an affirmative defense (i.e. discrimination claim) to the Agency’s
decision to discipline her, she did allege that the penalty of removal
was too severe as other employees charged with similar conduct were not
removed, but were suspended for only brief period of time.
The instant appeal was filed by Complainant challenging the Agency’s
dismissal decision.
ANALYSIS AND FINDINGS
Following a review of the record, the Commission finds that the
complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4).
An aggrieved person may initially file a mixed case complaint with an
agency or may file a mixed case appeal directly with the MSPB, but not
both. See 29 C.F.R. § 1614.302(b).
In this case, Complainant elected to appeal her termination to the MSPB,
and the claim raised in her EEO complaint was firmly enmeshed with her
termination. Complainant could have raised reprisal as an affirmative
defense to the Agency’s disciplinary action before the MSPB, and could
have argued therein that instead of being removed she should have been
offered a last chance agreement. However, she chose not to do so.
As the termination has been adjudicated before the MSPB, Complainant
cannot raise the failure to offer her a last chance agreement in an EEO
complaint as a separate matter.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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
February 10, 2012
__________________
Date
2
0120111126
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111126