Chara S., Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 3, 2017

0120150784 (E.E.O.C. Oct. 3, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Chara S.,
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120150784

Agency No. ARSHAFTER13OCT03636

DISMISSAL OF APPEAL

By Notice of Appeal postmarked December 13, 2014, Complainant filed an appeal with the
Equal Employment Opportunity Commission (EEOC or Commission) from the November 18,
2014 final agency decision concerning her EEO 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.

On October 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (Asian), color (yellow), sex (female), national origin
(Japanese), age, and in reprisal for prior protected EEO activity when:

On August 8, 2013, a Lieutenant Colonel (LTC) provided her a Notice of Decision on
Proposed Removal for an unauthorized request to modify contracts, discourtesy toward a
supervisor, use of offensive language, discourtesy toward a coworker, and
insubordination.

In its November 18, 2014 final decision, the Agency found no discrimination and provided
Complainant with appeal rights to the Merit Systems Protection Board (MSPB) and not the
EEOC.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120150784

2
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, but not both. 29 C.F.R. §1614.302(b).
As a general matter, if Complainant is dissatisfied with the Agency's final decision on a mixed
case complaint, Complainant may appeal the matter to the MSPB (not EEOC) within 30 days of
receipt of the Agency's final decision. 29 C.F.R §1614.302(d)(l)(ii).

In the present matter, the Agency determined that Complainant's claim was a mixed case
complaint and issued a final decision finding no discrimination. The final decision gave
Complainant mixed case appeal rights and instructed her to file with the MSPB, not the EEOC.
Complainant however, filed her appeal from the Agency's final decision on a mixed case
complaint with the EEOC, and the appeal is DISMISSED.2

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.

2 We note that the Commission's regulations require that should the MSPB dismiss an appeal for
lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed
case. 29 C.F.R. § 1614.302(c)(2)(ii).
0120150784

3
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 3, 2017
Date