Mildred A. Oxley, Complainant,v.Ed Schafer, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120064544 (E.E.O.C. Jan. 15, 2009)

0120064544

01-15-2009

Mildred A. Oxley, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.


Mildred A. Oxley,

Complainant,

v.

Ed Schafer,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01200645441

Agency No. RD200401310

Hearing No. 260-2005-00177X

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 21, 2006, dismissing her complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her

complaint, complainant alleged that she was subjected to discrimination

on the basis of age (D.O.B.: April 27, 1938) when on an unspecified date,

she was involuntarily reassigned to a position in LeMars, Iowa.

Following an investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). On August 19, 2005, the AJ issued an

order dismissing the complaint for lack of jurisdiction. Specifically,

the AJ found that complainant was a competitive service employee not

serving a probationary or trial period under initial appointment; that

her complaint included the adverse action of constructive discharge; and

that her complaint therefore is a mixed-case complaint appealable to the

Merit Systems Protection Board (MSPB), not the EEOC. The AJ remanded

the complaint to the agency for an agency decision, and informed the

agency that it must notify complainant that if she wished to appeal the

agency decision, she may appeal her claim to the MSPB within 30 days of

receipt of the agency's final decision. Subsequently, on June 21, 2006,

the agency issued a final decision on the merits of complainant's claim,

finding that complainant failed to establish by a preponderance of the

evidence that discrimination existed.

Upon review of the record, we find that the agency provided complainant

with incorrect appeal rights in its decision. Specifically, the agency

wrongly advised complainant that she could appeal the agency decision

with the EEOC's Office of Federal Operations. The agency was ordered by

the AJ to process the complaint as a mixed matter, in accordance with

29 C.F.R. �1614.302(d), and to issue the proper appeal rights to the

MSPB in accordance with 29 C.F.R. � 1614.302(d)(3).

CONCLUSION

Because the agency did not process the complaint as a mixed-case

complaint, and failed to issue complainant the correct appeal rights,

we VACATE the agency's final decision and REMAND the complaint to the

agency for further processing in accordance with the ORDER herein.

ORDER

Within 30 days of the date this decision becomes final, the agency

shall issue a new final decision on complainant's mixed case complaint,

which shall provide complainant with appropriate and exclusive appeal

rights to the Merit Systems Protection Board consistent with 29 C.F.R. �

1614.302(d). The agency shall submit a copy of the final decision to

the EEOC Compliance Officer as indicated herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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, D.C. 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

January 15, 2009

Date

1This case has been redesignated with the above-referenced appeal number.

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0120064544

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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