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.