Rebekah L. Tylavsky, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionJun 18, 2009
0120091981 (E.E.O.C. Jun. 18, 2009)

0120091981

06-18-2009

Rebekah L. Tylavsky, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Rebekah L. Tylavsky,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 0120091981

Agency No. DECA000572009

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated March 23, 2009, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's

complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),

for untimely EEO Counselor contact. In her complaint, complainant alleged

that she was subjected to discrimination on the basis of disability

(physical) when she was subjected to harassment and terminated from her

position.

The agency dismissed the matter, stating that the alleged discriminatory

event occurred on November 5, 2008, but complainant did not initiate

contact with an EEO Counselor until January 6, 2009, which is beyond the

forty-five (45) day limitation period. On appeal, complainant explained

that she first filed an appeal with the Merit Systems Protection Board

(MSPB). A review of the MSPB decision dated December 16, 2008 indicates

that jurisdiction issues were discussed and the "confusing language in

the agency's termination letter" was noted. Further the MSPB decision

stated that in light of the discussion, complainant voluntarily withdrew

her appeal and the agency's counsel "agreed to have an appropriate agency

official contact complainant and explain how a discrimination complaint

could be filed." There is no indication that complainant was warned

that withdrawing her appeal would result in a finding of untimely

EEO counselor contact or that she might be considered as having made

an election to purse the MSPB forum. The Commission commonly affirms

dismissals where complainant first elects to file an appeal on the same

matter with the MSPB and then voluntarily withdraws the appeal. However,

under the facts of this case, the Commission finds that, in essence, the

MSPB's dismissal of the appeal was for lack of jurisdiction. As such,

when the MSPB has denied jurisdiction in such matters, the Commission

has held that there is little point in continuing to view the matter as

a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the case

will be considered a "non-mixed" matter and remanded to the agency to be

processed accordingly. See generally Schmitt v. Dept. of Transportation,

EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the

Army, EEOC Request No. 05900883 (October 12, 2990); 29 C.F.R. �

1614.302(c)(2)(i) and (ii). Further, the date complainant filed her

appeal with the MSPB shall be used as the date of EEO counselor contact.

Accordingly, the agency's final decision dismissing complainant's

complaint is reversed and the complaint is remanded to the agency for

processing in accordance with the following Order.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced 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

June 18, 2009

__________________

Date

2

0120091981

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091981