Diane Fries, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionNov 22, 1999
01984104_r (E.E.O.C. Nov. 22, 1999)

01984104_r

11-22-1999

Diane Fries, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Diane Fries, )

Complainant, )

)

v. ) Appeal No. 01984104

) Agency No. FWS-98-010R6

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

On April 23, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on March 31, 1998, pertaining

to her complaint of unlawful employment discrimination pursuant to

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq. and Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq.<1> The Commission accepts complainant's appeal

in accordance with EEOC No. 960.001.

The record reflects that on December 17, 1997, complainant initiated

contact with an EEO Counselor. During the counseling period, complainant

alleged that on March 3, 1996, she was forced to accept a position at

a lower grade as a reasonable accommodation for her disability (physical).

Unable to informally resolve the matter, on January 23, 1998, complainant

filed a formal complaint alleging that she had been the victim of

unlawful employment discrimination on the bases of her gender (female)

and disability (physical). Complainant's complaint was comprised of

the matter for which she underwent EEO counseling, discussed above.

The agency, on March 31, 1998, issued a final decision dismissing

complainant's complaint for failure to initiate timely contact with

an EEO Counselor. The agency found that the alleged discriminatory

incident occurred on March 3, 1996, and that complainant's initial EEO

counselor contact in December 1997, was more than forty-five days after

the incident purportedly occurred. Furthermore, the agency dismissed

the complaint on the alternative grounds that complainant filed an appeal

concerning the same matter with the Merit Systems Protection Board (MSPB)

on January 9, 1998.

On appeal, complainant argues, as per the timeliness issue, that she

in fact contacted an EEO Counselor in August 1996, but was subsequently

informed that nothing could be done to help her and, therefore, she did

not file a complaint. Furthermore, complainant argues that her illness

coupled with the harassment, abuse and retaliation she suffered at the

hands of her supervisor, rendered her incompetent to handle her affairs

and thus the forty-five-day limitation period should be extended.

Upon review, we find that the agency properly dismissed complainant's

complaint. 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. See 64 Fed. Reg. 37,644

37,659 (1999) (to be codified at and hereinafter referred to as

29 C.F.R. �1614.302). 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. 64 Fed. Reg. 37,644 37,656 (1999) (to be codified

at 29 C.F.R. � 1614.107(a)(4)) 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.

In the present case, the record reflects that on January 9, 1998,

complainant filed an appeal with the MSPB pertaining to her allegation

that she was forced to take a downgrade in March 1996. Complainant

filed a formal EEO complaint on the same issue on January 23, 1998.

Therefore, by filing the appeal with the MSPB, on January 9, 1998,

complainant elected that forum to pursue the allegation. Accordingly,

the agency's decision dismissing complainant's complaint for filing the

same matter with the MSPB was proper and is AFFIRMED.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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:

November 22, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________________

________________1On November 9, 1999, revised regulations governing

the EEOC's federal sector complaint process went into effect. These

regulations apply to all Federal sector EEO complaints pending at any

stage in the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at WWW.EEOC.GOV.

2Since we are affirming the dismissal of complainant's complaint on the

grounds that she previously filed an appeal with the MSPB, we need not

address the agency's alternative grounds for dismissal.