01985215
10-18-1999
Fredrico D. Broom, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Fredrico D. Broom v. Department of the Army
01985215
October 18, 1999
Fredrico D. Broom, )
Appellant, )
)
v. ) Appeal No. 01985215
) Agency No. BGANFO9801H0010
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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., the Age Discrimination in Employment Act of 1967,
as amended (ADEA), 29 U.S.C. �621 et seq., and the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
received by appellant on May 20, 1998. The appeal was postmarked June
16, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
The record shows that appellant requested counseling on January 7, 1998,
regarding his removal from his position as Boiler Plant Operator effective
January 9, 1998.
On January 30, 1998, appellant filed an appeal with the Merit Systems
Protection Board (MSPB) regarding his removal from agency employment.
On March 6, 1998, appellant filed a formal complaint that is the subject
of the instant appeal, alleging discrimination based on mental disability,
age and reprisal.
On April 13, 1998, appellant withdrew his MSPB appeal during a
pre-hearing telephone conference with an EEOC Administrative Judge and
an agency attorney.
In a final agency decision (FAD) dated May 12, 1998, the agency dismissed
the complaint on the grounds that appellant had filed an appeal with the
MSPB on January 30, 1998, prior to filing his EEO complaint. The agency
stated that a review of the MSPB appeal showed that appellant had raised
the issue of discrimination, and concluded that appellant had made an
election to pursue the non-EEO process.
On appeal, appellant's attorney argues that in the MSPB pre-hearing
conference on April 13, 1998, the agency never indicated that it intended
to dismiss appellant's EEO complaint after he withdrew his MSPB appeal.
In response, the agency argues that it did not mislead appellant into
withdrawing the MSPB appeal. The agency further argues that on January
7, 1998, appellant was informed that he could elect to pursue the issue
of his removal through the MSPB instead of through the EEO complaint
process.
EEOC Regulation 29 C.F.R. �1614.302(b) provides that "an aggrieved person
may initially file a mixed case complaint with an agency pursuant to
this part or an appeal on the same matter with the MSPB pursuant to 5
C.F.R. 1201.151, but not both."
EEOC Regulation 29 C.F.R. �1614.107(d) provides that the 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 �1614.301 or �1614.302
indicates that the complainant has elected to pursue the non-EEO process.
The record reveals that appellant filed an appeal regarding his removal
with the MSPB on January 30, 1998. Appellant's subsequent withdrawal of
his MSPB appeal on April 13, 1998, did not negate his prior election.
See Hammond v. General Services Administration, EEOC Request NO. 05940428
(August 25, 1994); Dean v. United States Postal Service, EEOC Appeal
No. 01942928 (June 29, 1994). Moreover, the record reflects that prior
to the time appellant withdrew his MSPB appeal, he was on notice of his
right to elect a forum between filing a mixed case appeal with the MSPB
and a mixed case EEO complaint with the agency. Therefore, we find that
appellant's prior appeal to the MSPB constituted an election of forum
and the agency's dismissal on that ground was proper. Accordingly, the
agency's decision dismissing appellant's complaint is hereby AFFIRMED
for the reasons set forth herein.
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:
10/18/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations