Mahesh C. Sikka, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionNov 29, 2000
01995337 (E.E.O.C. Nov. 29, 2000)

01995337

11-29-2000

Mahesh C. Sikka, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Mahesh C. Sikka v. Department of Defense

01986771, 01995337

November 29, 2000

.

Mahesh C. Sikka,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal Nos. 01986771

01995337

Agency Nos. 97-LE-MS01; 97-LE-MS02; 98-LE-MS01

DECISION

Complainant filed three complaints (97-LE-MS01, 97-LE-MS02, and

98-LE-MS01) which were consolidated by the agency. The agency

consolidated the complaints and issued a decision finding no

discrimination dated June 19, 1998. The agency defined the complaints

as follows:

97-LE-MS01 (alleging discrimination on the bases of race, national origin,

and in retaliation for prior protected activity):

On October 3, 1996, complainant received a Memorandum of Warning for

Substandard Performance and was placed on a Performance Improvement Plan

(PIP).

Management harassed complainant by providing feedback on complainant's

work.

There is an unequal distribution of time given to complainant to act in

the position of Chief, Project Definition Branch.

97-LE-MS02 (alleging discrimination on the bases of race, national origin,

and in retaliation for prior protected activity)

Harassment because management issued weekly progress reports while

complainant was on a 120 day PIP.

Harassment when complainant's supervisor discussed his performance with

the Deputy General Counsel.

98-LE-MS01 (alleging discrimination on the bases of race, national origin,

disability, and in retaliation for prior protected activity)

Termination effective July 11, 1997.

In the June 19, 1998 decision the agency informed complainant that the

consolidated complaints were a mixed case complaint and that complainant

had no right to a hearing before an EEOC Administrative Judge. The agency

found no discrimination with regard to the claims raised and informed

complainant that he could file an appeal with the Merit Systems Protection

Board (MSPB). Complainant filed an appeal with the MSPB, as well as

the Commission.<1>

The record indicates that inexplicably the subject complaints were

forwarded to an EEOC Administrative Judge (AJ) for a hearing. The EEOC

AJ issued �Orders� dated January 13, 1999, in which the EEOC AJ: (1)

dismissed 98-LE-MS01 (termination) from the AJ's jurisdiction and remanded

the matter to the agency for dismissal as mixed case complaint; and (2)

remanded 97-LE-MS01 and 97-LE-MS02 to the agency to be held in abeyance.

The agency subsequently issued a decision dated May 13, 1999 dismissing

98-LE-MS01 (termination) on the grounds that complainant appealed the

matter to the MSPB.

The instant appeals are from the June 19, 1998 agency decision (EEOC

Appeal No. 01986771) and from the May 13, 1999 agency decision (EEOC

Appeal No. 01995337). The instant appeals are consolidated pursuant

to � 1614.606. EEOC Regulation 29 C.F.R. � 1614.302(d)(1)(ii) provides

that if a complainant is dissatisfied with the agency's final decision

on a mixed complaint, then complainant �may appeal the matter to the

MSPB (not EEOC) . . .� Therefore, we find that complainant had no

right to appeal the agency June 19, 1998 decision to the Commission.

Furthermore, since the complaints at issue were mixed case complaints,

complainant had no right to a hearing before an EEOC AJ on the claims

raised therein. Given the agency's June 19, 1998 decision on the merits

of the subject complaints, the agency's subsequent procedural dismissal

of agency number 98-LE-MS01 appears to have been in error. Consequently,

we find that there is no matter properly before the Commission on appeal

and the instant appeals are DISMISSED accordingly.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 29, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The record indicates that the MSPB issued a decision on complainant's

appeal on November 10, 1999, upholding the agency's actions.