Myra B. Burton, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 15, 1999
01992671 (E.E.O.C. Sep. 15, 1999)

01992671

09-15-1999

Myra B. Burton, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Myra B. Burton v. Department of the Air Force

01992671

September 15, 1999

Myra B. Burton, )

Appellant, )

) Appeal No. 01992671

v. ) Agency No. KHOF97525

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning her complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted in

accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for untimely contact with an EEO Counselor and for addressing

the same issue which has been previously adjudicated in the Merit Systems

Protection Board (MSPB) appeal process.

BACKGROUND

Appellant filed a formal complaint on August 8, 1997, alleging

discrimination on the bases of sex (female), race (Black), and physical

disability (broken ankle, an on-the-job injury) when:

1) from December 1987 through April 1994, appellant was on leave without

pay (LWOP) due to complications from her on-the-job injury sustained on

January 30, 1987;

2) on April 25, 1994, appellant was involuntarily terminated for excessive

absenteeism;

3) on no specific date, appellant's second-level supervisor's conversation

with appellant's doctor was allegedly overheard by everyone in the area;

and

4) on no specified date, appellant's second-level supervisor allegedly

spoke inappropriately to appellant's child on the telephone.

The appellant's complaint was subsumed in a class complaint on November

21, 1997. The class complaint was dismissed on October 20, 1998, for

failure to meet class certification. Therefore, appellant's complaint

was processed by the agency in accordance with EEOC Regulation 29

C.F.R. �1614.106(d). In its FAD, the agency dismissed the complaint

finding that the allegations occurred from December 1987 to April 1994.

Appellant contacted an EEO Counselor on June 24, 1997. Therefore,

the agency found that appellant had untimely contacted an EEO Counselor

and dismissed appellant's complaint pursuant to 29 C.F.R. �1614.107(b).

The agency went on to state that appellant raised this complaint before

the MSPB in her appeal of the agency's decision to remove appellant

due to excessive absenteeism effective April 25, 1994. The MSPB

judge affirmed the agency's action on September 13, 1994, and denied

appellant's request for review on December 6, 1994. Accordingly, the

agency dismissed appellant's complaint for addressing the same issue

which has been previously adjudicated in the MSPB appeal process.

This appeal followed.

ANALYSIS AND FINDINGS

A mixed case complaint is a complaint of employment discrimination

filed with a federal agency, related to or stemming from an action that

can be appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved

person may initially file a mixed case complaint with an agency or

may file a mixed case appeal directly with the MSPB, pursuant to 5

C.F.R. �1201.151, but not both. 29 C.F.R. �1614.302(b). EEOC Regulation

29 C.F.R. ��1614.107(d) provides that an agency shall dismiss a complaint

or a portion of a complaint where the complainant has raised the matter

in an appeal to the MSPB.

Appellant raised allegations pertaining to her removal and the

circumstances surrounding it in her appeal to MSPB of the agency's action.

On September 13, 1994, MSPB issued appellant a decision which affirmed

the agency's removal of appellant and found that appellant was not

discriminated against based on her disability. Appellant petitioned MSPB

to review their initial decision. The Board denied the petition when

it issued its final order on December 6, 1994. At that time, appellant

was notified of her right to have the MSPB decisions reviewed by the

Commission but there is no evidence that appellant took such an action.

Upon review of the file, we find that appellant raised allegations (1)

- (4) in her appeal to MSPB. Therefore, the Commission finds that the

agency's FAD was proper when it dismissed appellant's complaint pursuant

to 29 C.F.R. �1614.107(d).

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Sept. 15, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations