James A. Neely, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01987051 (E.E.O.C. Apr. 10, 2000)

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.