01A13828_r
09-20-2001
Lupe M. Wilson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Lupe M. Wilson v. Department of the Navy
01A13828
September 20, 2001
.
Lupe M. Wilson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13828
Agency No. DON-FY01-63200-001
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race, sex and in reprisal for prior protected activity. Informal
efforts to resolve complainant's concerns were unsuccessful. On April 6,
2001, complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
On June 1, 1999, complainant was verbally offered a position as Deputy
Satellite Manager (trainee). Complainant contends that this offer was
subsequently rescinded; that this offer was made in bad faith; and that
the agency never intended to fulfill this offer; and
(b) On June 1, 1999, complainant received a Notice of Reduction-in-Force
and Separation.
On April 18, 2001, the agency issued a decision dismissing the complaint
on the grounds that complainant raised the matters in an appeal to
the Merit Systems Protection Board (MSPB). Specifically, the agency
determined that both claims were discussed in the MSPB's Initial Decision,
issued on November 10, 1999 (MSPB Docket No. SF-0351-99-0626-I-1).
Thereafter, the MSPB issued a Final Order on May 2, 2000. The agency
concluded that complainant was not allowed to pursue the matter through
the EEO complaint process.
The record reveals that on November 10, 1999, the MSPB issued a
decision addressing both claims (a) and (b). Complainant argues on
appeal that the MSPB Administrative Judge (AJ) limited testimony to
RIF procedures and that no information regarding discrimination was
investigated or presented. However, we find that the AJ of the MSPB
addressed complainant's claims of discrimination based on race and sex.
We note, for example, that the AJ determined that the agency articulated a
legitimate, nondiscriminatory reason for its action and that complainant
failed to show that the reasons were a pretext for discrimination.
Thereafter, complainant filed a petition for review of the case and,
on May 2, 2000, the petition was denied and the initial decision became
final, as discussed above. Accordingly, the agency's decision to dismiss
the complaint pursuant to 29 C.F.R. � 1614.107(a)(4) was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 20, 2001
__________________
Date