0120081292
09-25-2009
Debra A. Hodges,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120081292
Agency No. 2007-21138-FAA-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 22, 2007, 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.
On April 17, 2007, complainant filed an EEO complaint wherein she claimed
that she was discriminated against on the bases of her sex (female) and
age (48) when she was terminated from her position of Section Supervisor
effective March 31, 2007.
The agency dismissed the complaint on the grounds that complainant filed
an appeal with the Merit Systems Protection Board (MSPB) concerning her
termination but failed to raise any issue of discrimination in her MSPB
appeal despite the fact that the issue that could have been adjudicated
in the MSPB proceeding.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that
an agency may dismiss a complaint where the complainant has raised the
matter in an appeal to the Merit Systems Protection Board and � 1614.301
or � 1614.302 indicates that the complainant has elected to pursue the
non-EEO process. In the instant case, the record shows that on April 20,
2007, complainant filed an appeal with the MSPB concerning the matter
identified in the complaint. The record shows that, in its July 31, 2007
decision, the MSPB fully addressed the circumstances leading up to the
agency's issuance of the Notice of Proposed Removal on October 18, 2006,
and complainant's March 31, 2007 removal. The Commission has held that
the adjudication of the case by the MSPB is tantamount to an election of
remedies. See Spriesterbach v. United States Postal Service, EEOC Appeal
No. 01A00346 (April 6, 2000) (citing Aho v. Department of Agriculture,
EEOC Request No. 05860085 (May 22, 1985)). The Commission has also held
that upholding the unequivocal legislative interest to provide only one
forum in which to challenge the propriety of an agency action alleged
to have been based, in whole or in part, on discriminatory factors,
takes precedence over complainant's equitable entitlement to have an
adjudication of that issue in one forum or the other. See id. Thus,
the Commission finds that complainant has effectively made an election
to pursue the removal in an appeal to the MSPB.
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
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 (S0408)
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 (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
September 25, 2009
__________________
Date
2
0120081292
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120081292