Jackv.Russo, Complainant, v. Richard J. Danzig, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 21, 2000
01a03552 (E.E.O.C. Jul. 21, 2000)

01a03552

07-21-2000

Jack V. Russo, Complainant, v. Richard J. Danzig, Secretary, Department of the Army, Agency.


Jack V. Russo v. Department of the Navy

01A03552

07-21-00

.

Jack V. Russo,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A03552

Agency No. DON (MC) 99-62204-049

DECISION

On April 19, 2000, Jack V. Russo (hereinafter referred to as complainant)

initiated an appeal to the Equal Employment Opportunity Commission

(Commission) with regard to his complaint of discrimination in violation

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

2000e et seq, and � 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq.<1> The final agency action was received by

complainant on March 21, 2000. Accordingly, the appeal is timely and

is accepted by this Commission in accordance with 64 Fed.Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

Complainant contacted an EEO Counselor on April 7, 1999, and subsequently

filed a formal complaint alleging that he had been discriminated against

on the bases of his race (white), and disability (�perceived�) when he

was not selected for a Firefighter position. The agency dismissed the

complainant on the grounds that the matter had been raised in an appeal

before the Merit Systems Protection Board (MSPB).

The EEOC Regulations provide that an agency may dismiss a complaint where

the complainant has filed an appeal with MSPB concerning the matter at

issue. 64 Fed.Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.107(4)). The record shows that complainant

filed such an appeal on February 4, 1999, alleging that he was subjected

to discrimination. Nevertheless, an MSPB Administrative Judge dismissed

the appeal on April 4, 2000, for lack of jurisdiction. The Commission has

found that when the MSPB determines it lacks jurisdiction in a case and

thus does not address a complainant's issues of discrimination, it has,

in effect, determined that the issue is not a �mixed case.� See generally

Schmitt v. Department of Transportation, EEOC Appeal No. 01902126 (July

9, 1990); Phillips v. Department of the Army, EEOC Request No. 05900883

(October 12, 1990). Thus, such a complaint presents a non-mixed matter

amenable to processing through the EEO process.<2> Accordingly it is

the decision of the Commission to REVERSE the final agency decision,

and REMAND the complaint herein to the agency for further processing in

accordance with the following Order.

ORDER

The agency is ORDERED to hold the complaint herein in abeyance pending the

decision of the MSPB regarding the jurisdiction of complainant's appeal.

If the MSPB accepts jurisdiction of the appeal, the agency shall issue a

new final decision dismissing complainant's EEO complaint. If the MSPB

finds that the appeal was properly dismissed for lack of jurisdiction,

the agency shall process complainant's EEO complaint in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded complaint within thirty

(30) calendar days of the date this decision becomes final.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action."

29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or

a civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

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

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (Z1199)

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:

__________________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

______07-21-00____________________________

Date

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 claimant, claimant's representative

(if applicable), and the agency on:

_________________________

Date

_________________________

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.

2The Commission notes that complainant filed a petition for review of

the Administrative Judge's decision with the MSPB on May 5, 2000.