01984123_r
06-18-1999
Curtis Stacker, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Curtis Stacker, )
Appellant, )
)
v. ) Appeal No. 01984123
) Agency No. 98-60701-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On May 4, 1998, appellant filed an appeal with this Commission from a
final agency decision (FAD) received by him on April 3, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq., �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq.<1> In his complaint, appellant
alleged that he was subjected to discrimination on the bases of race
(African-American), color (black), sex (male), age (unspecified),
mental disability (emotion/distress), physical disability (hand), and
in reprisal for prior EEO activity when on October 3, 1997, appellant
was removed from federal service for illegal use of drugs, at which time:
Appellant was treated different from other employees of different gender,
race, color, age, sex and disability;
The agency did not afford appellant his rights as mandated by the
negotiated memorandum of agreement between the American Federation of
Government Employees Local 1931 and the Concord Naval Weapons Station,
pertaining to drug testing policies and procedures;
Appellant did not have an opportunity to reply to the proposed action
orally or in writing;
Appellant was not given an opportunity for rehabilitative assistance;
The agency failed or refused to recognize appellant's disabilities;
Management officials and other personnel engaged in an attempt to
prevent appellant from receiving Workers' Compensation benefits; and
By these and other acts, the agency has committed unlawful discrimination
against appellant.
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), for alleging matters raised in a prior MSPB appeal.
Specifically, the agency found that all of appellant's allegations
related to his removal, and that appellant appealed his removal with
the MSPB prior to filing the present complaint.
On appeal, appellant argues through his attorney that the MSPB appeal is
no longer at issue because it has been dismissed. Further, appellant
argues that the present complaint is a continuing violation of a prior
complaint that the agency accepted for investigation on July 21, 1998,
Agency Number 97-60036-004, and that the present complaint should be
consolidated with this prior complaint.
A review of the record reveals that appellant filed an appeal of his
removal with the MSPB on October 3, 1997, and filed the present formal
complaint on December 12, 1997. In his MSPB appeal, appellant alleged
that he suffered discriminatory disparate treatment. The record also
includes a dismissal of appellant's MSPB appeal without prejudice, dated
January 13, 1998, granting appellant's request for dismissal because
appellant was medically unable to continue. The dismissal gave appellant
the right to re-file his appeal with the MSPB at a later date.
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). EEOC Regulation 29 C.F.R. �1614.107(d)
provides that an agency shall dismiss a complaint or a portion of 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.
The Commission finds that all of appellant's allegations relate to
his removal. Further, the Commission finds that appellant appealed his
removal with the MSPB before filing the present complaint, and therefore,
appellant elected to pursue his removal through the MSPB. The dismissal
of appellant's MSPB appeal without prejudice does not negate appellant's
election to pursue the matter with the MSPB. See Mathis v. Department
of Agriculture, 01983166 (June 23, 1998) (dismissal without prejudice
does not relieve election of non-EEO process where appellant was given
right to re-file complaint). Accordingly, the agency properly dismissed
appellant's complaint for alleging matters previously raised in an
MSPB appeal.
CONCLUSION
Accordingly, the agency's dismissal of appellant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 18, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The thirtieth day following
appellant's receipt of the agency decision fell on Sunday,
May 3, 1998, requiring an extension of the time period for the
filing of appellant's appeal to the next business day, Monday,
May 4, 1998. 29 C.F.R. �1614.604(d). Accordingly, appellant's
appeal was timely.