01A01588_r
07-11-2002
Carol Shores, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Carol Shores v. Department of the Navy
01A01588
July 11, 2002
.
Carol Shores,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A01588
Agency No. 98-67001-008
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, issued on November 18, 1999, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On December 22, 1997, complainant filed an EEO complaint claiming that
she was discriminated against on the bases of sex, age, and in reprisal
for prior protected activity, when:
(1) on July 23, 1997, complainant received a Letter of Reprimand for
leaving her duty station without authorization;
(2) on July 28, 1997, she received a Letter of Reprimand for failing
to comply with directives;
(3) on July 31, 1997, she received a Notice of Unsatisfactory Performance
Appraisal; and
(4) she was subjected to ongoing and continuous acts of discrimination.
On January 22, 1998, the agency issued a decision dismissing claims (2)
and (4) on the grounds of untimely EEO Counselor contact. Complainant
filed an appeal from this decision. On appeal, Commission affirmed the
agency's dismissal of claim (4); however, the Commission found that
claim (2) was improperly dismissed for untimely EEO Counselor contact.
Moreover, the Commission determined that because the agency did not
address claim (3) in its decision, the Commission considered it to be
dismissed by the agency.<1> The Commission remanded claims (2) and (3)
to the agency for further processing. Shores v. Department of the Navy,
EEOC Appeal No. 01983323 (October 18, 1999).
On November 18, 1999, the agency issued a final decision that is the
subject of the instant appeal. The agency dismissed claims (1), (2),
and (3) on the grounds that the matters raised therein were part of
an appeal to the Merit Systems Protection Board (MSPB). Specifically,
the agency determined that complainant raised all the matters that are
addressed in claims (1) - (3) during the MSPB appeal of her removal.
On appeal, complainant argues that the issues in her EEO complaint are
separate from the matter appealed to the MSPB. Complainant contends
that the MSPB appeal concerned management's failure to follow agency
procedures during the handling of her performance appraisal and removal.
Further, she argues that she attempted to have the EEO issues heard, but
that the MSPB Administrative Judge (AJ) "made it clear to all parties that
he was not going to hear EEO related issues." According to complainant,
the MSPB AJ refused to approve any of her EEO related witnesses.
In response, the agency indicates that complainant's defense against the
removal included the introduction of evidence regarding the purportedly
discriminatory letters of reprimand and unsatisfactory performance
appraisal.
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). 29 C.F.R. � 1614.107(a)(4) provides
that an agency shall dismiss 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.
A review of the record in the instant case shows that a MSPB AJ issued
an Initial Decision on December 30, 1999. The decision affirms the
agency's removal of complainant from the Environmental Control Specialist
position. We note that during his analysis of the agency's decision,
the MSPB AJ considered complainant's July 31, 1997 unsatisfactory
performance appraisal. We find that the issue of the performance
appraisal is inextricably intertwined with the issue of the termination
for failure to meet performance standards in various critical elements.
The agency properly dismissed claim (3), regarding the July 31, 1997
appraisal, pursuant to 29 C.F.R. � 1614.107(a)(4).
The Letters of Reprimand, however, are not cited in the AJ's decision.
While the agency argues on appeal that complainant attempted to include
the Letters of Reprimand in her MSPB case, there is no evidence in the
record establishing that the July 23, 1997 and July 28, 1997 Letters of
Reprimand, claims (1) and (2), respectively, were considered by the MSPB.
Consequently, we find that claims (1) and (2) were improperly dismissed.
Accordingly, the agency's decision to dismiss claim (3) was proper and
is hereby AFFIRMED. The agency's decision to dismiss claims (1) and
(2) was improper and is REVERSED. Claims (1) and (2) are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (1) and (2))
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) 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 complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2002
__________________
Date
1It appears that claim (1) was accepted for further processing.