01987051
04-10-2000
James A. Neely, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
James A. Neely v. Department of the Army
01987051
April 10, 2000
James A. Neely,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01987051
Agency No. BHDXFO9612G0440
DECISION
On September 25, 1998, James A. Neely (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission) from
the final decision of the Department of the Army (agency), concerning his
equal employment opportunity complaint alleging employment discrimination
based on race (Native American) and reprisal (prior EEO activity) in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The final agency decision was dated August
28, 1998. In accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified at 29 C.F.R. � 1614.405), the complainant's appeal from the
agency's final decision in the above-entitled matter has been accepted
by the Commission.
The issue on appeal is whether the agency properly processed complainant's
complaint as a mixed case complaint and whether the EEOC has jurisdiction
over complainant's appeal.
In a complaint dated April 30, 1997, complainant claimed that he
was discriminated against as referenced above when his position as a
GS-0392-07 General Telecommunications equipment Operator was abolished
through a reduction in force (RIF). The record is not entirely clear
as to whether or not complainant was advised at the point the complaint
was accepted for investigation that his complaint was a mixed case with
direct appeal rights to the Merit Systems Protection Board (MSPB). See 29
C.F.R. � 1614.302. Nevertheless, at the conclusion of the investigation
of the complaint, the agency erroneously notified complainant that he
had the right to a hearing before an EEOC Administrative Judge or an
immediate final decision from the agency. When the complainant failed
to respond to the notice, the agency issued its final decision finding
no discrimination. However, the final decision noted the previous error
concerning complainant's appeal rights, correctly informed complainant
that his complaint was a mixed case, and issued the appropriate appeal
rights, clearly stating that the complainant should appeal directly to
the MSPB, not the EEOC.
Accordingly, inasmuch as the EEOC does not have jurisdiction over
complainant's appeal of the agency's final decision on his mixed case
complaint, the appeal is hereby DISMISSED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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 (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:
April 10, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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
EEOC's website: www.eeoc.gov.