0120091456
08-06-2009
James M. Ozmer, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
James M. Ozmer,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091456
Agency No. AMS-2007-00608
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's December 31, 2008 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
During the period at issue, complainant was employed as a Agriculture Commodity Grader (Tobacco), GS-1980-09, at the agency's Agriculture Marketing Service, Tobacco Programs in Danville, Virginia.
On May 14, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (Caucasian) and color (white) when:
on April 11, 2007, he was terminated through a Reduction-in-Force (RIF), from his Agricultural Commodity Grader (Tobacco) position.
The record reflects that complainant also had filed an appeal with the Merits System Protection Board (MSPB) in which he alleged that he was discriminated against when he was terminated from agency employment through the RIF (identified as MSPB Docket Number DC-0351-08-0265-I-1).
On February 29, 2008, the MSPB issued an Initial Decision. Therein, an MSPB Administrative Judge dismissed the MSPB appeal on the grounds that complainant withdrew his appeal by written submission on February 25, 2008, and that he had confirmed his intention to withdraw his appeal in a telephone conversation with the Administrative Judge, on February 28, 2008. The MSPB decision noted that the withdrawal of an appeal is "an act of finality that removes the appeal from the Board's jurisdiction."
On December 31, 2008, the agency issued a final decision finding no discrimination. Specifically, the agency found that complainant did not establish a prima facie case of race and color discrimination. The agency nevertheless found that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination. The agency provided Notice of Appeal Rights for "Mixed Cases" and provided complainant with appeal rights to the MSPB. The agency made no reference in its final decision to the MSPB Initial Decision of February 29, 2008.
Upon review, the Commission notes that, according to the MSPB, the February 29, 2008 MSPB decision resulted in the removal of complainant's MSPB appeal from the MSPB's jurisdiction. The Commission has held that where an individual files an appeal with the MSPB which is dismissed for lack of jurisdiction, the matter will not be viewed as a "mixed case." Rather, it will be treated as a "non-mixed" matter and processed accordingly. See Schmitt v. Department of Transportation, EEOC Appeal N. 01902126 (July 9, 1990) (sets forth the policy of the Commission assuming jurisdiction over cases dismissed by the MSPB for lack of jurisdiction); Phillips v. Department of Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b).
In the instant final decision, the agency did not address the MSPB Initial Decision of February 29, 2008. Instead, it entertained complainant's case on the merits, as a "mixed case" with appeal rights to the MSPB, and not the Commission. Given the specific circumstances of this case, the Commission determines that because complainant has not yet had the opportunity to have a hearing on the matters raised in the instant complaint, it is not appropriate for us to address the merits on appeal. In accordance, we VACATE the agency's finding of no discrimination and REMAND the complaint to the agency for further processing, in accordance with the ORDER below.
ORDER
The agency is ordered to take the following action:
Within fifteen (15) calendar days of the date that this decision becomes final, the agency shall notify the complainant, pursuant to 29 C.F.R. � 1614.108(f), of his right to request a hearing before an EEOC Administrative Judge, or an immediate final decision. If complainant elects an immediate final decision, the agency shall issue it, with appeal rights to this Commission, within sixty (60) calendar days of its receipt of the request.
The agency shall copy a copy of the notice to the Compliance Officer in accordance with the provision below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960, Washington, DC 20013. 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 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 (R0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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, Director
Office of Federal Operations
August 6, 2009
__________________
Date
2
0120091456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013