0120092809
12-15-2009
Beverly H. Phillips, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Beverly H. Phillips,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120092809
Agency No. IRS080769F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 28, 2009, notifying complainant that it would cease
processing her EEO complaint and hold it in abeyance.
Complainant filed an EEO complaint on November 11, 2008. On January 20,
2009, complainant filed a motion with the Merit Systems Protection Board
(MSPB) to consolidate her EEO complaint with a pending appeal before the
MSPB, and the agency held the processing of complainant's EEO complaint
in abeyance. On March 31, 2009 the MSPB dismissed the appeal without
prejudice. In its May 2009 FAD, the agency said that the MSPB had not
ruled on complainant's motion for consolidation and that when the MSPB
dismisses an appeal without prejudice the matter remains within the
jurisdiction of the MSPB and the claim cannot be processed via the EEO
complaint procedures. The agency said that until a ruling was received
from the MSPB resolving the issue of jurisdiction, the agency would
continue to hold the processing of the complaint in abeyance.
On appeal, complainant has submitted documentation showing that on
June 29, 2009, the MSPB officially denied complainant's motion for
consolidation of her MSPB appeal and EEO complaint. See Complainant's
Appeal Brief, Exhibit N. In correspondence also dated June 29, 2009, the
agency notified complainant that "it is apparent that your allegations
of discrimination raised in your EEO complaint are not within the
jurisdiction of the MSPB. Therefore, processing of your EEO complaint
will recommence." Complainant's Appeal Brief, Exhibit M. On appeal,
complainant has submitted a request for a hearing before an EEOC AJ,
pursuant to 29 C.F.R. � 1614.108(g). As it has been more than 180 days
since complainant filed her EEO complaint, we REMAND this matter to the
agency to request a hearing before an EEOC AJ.
ORDER (C0900)
Within thirty (30) calendar days of receipt of this decision, the
agency shall forward complainant's request for a hearing, as well as
a copy of the complaint file, to the appropriate EEOC District Office
for the appointment of an Administrative Judge. The agency shall
also provide a copy of the complaint file to the complainant, if not
previously provided.
The agency is further directed to 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 this Order has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
December 15, 2009
__________________
Date
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0120092809
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092809