01a03963
11-01-2000
Renee T. Tatum, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Renee T. Tatum v. Department of the Army
01A03963
November 1, 2000
.
Renee T. Tatum,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03963
Agency No. BPAQFO9706H0270
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 7, 2000, dismissing 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.<1>
In her mixed case complaint dated May 21, 1997, complainant alleged
that she was subjected to discrimination on the bases of sex (female)
and in reprisal for prior EEO activity when:
Complainant was subjected to a reduction in force (RIF) in which her
position as a GS-1010-09 Exhibits Specialist was abolished.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(4), for raising the same matter
before the Commission which complainant previously elected to appeal to
the Merit Systems Protection Board (MSPB).
The record shows that complainant filed a mixed case appeal with the
MSPB on September 8, 1997, concerning the RIF which resulted in the
abolishment of her position. In her MSPB appeal, complainant raised the
claims of retaliation and sex based discrimination. On November 19, 1997,
by Order and Summary of Prehearing Conference the MSPB Administrative
Judge (AJ) struck sex as a prohibited basis of discrimination stating
that complainant failed to offer support for her claim that the agency's
actions were the result of sex based discrimination. Although the
AJ allowed complainant until November 28, 1997, to notify him of any
objections to the summary decision, the record reveals that complainant
failed to file any objections. The MSPB AJ issued an initial decision
upholding the agency's actions with regard to the RIF on January 13, 1998.
Complainant filed a petition for review with the MSPB on February 17,
1998.
On April 20, 1998, the EEOC AJ set the mixed case complaint for a hearing
to be held on July 20, 1998. The agency filed a Motion to Dismiss
arguing that complainant should be prohibited from seeking redress
before both the EEOC and the MSPB on the same matter. On April 7, 2000,
the EEOC AJ dismissed complainant's complaint for lack of jurisdiction.
Complainant filed a Petition for Review with the MSPB which was denied
on September 4, 1998. Then complainant appealed the MSPB's denial of
her Petition for Review to the United States Court of Appeals for the
Federal Circuit. In her civil action, complainant alleged that the
MSPB AJ failed to consider evidence of discriminatory and regulatory
infractions in reaching its initial decision. On June 19, 1999, the
Court affirmed the Board's decision and found that the MSPB AJ did
consider allegations of discrimination but determined that complainant
had not provided adequate support for these allegations.
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). EEOC regulation
29 C.F.R. � 1614.302(b) provides that an aggrieved person may initially
file a mixed case complaint with the agency or an appeal on the same
matter with the MSPB, but not both. Moreover, the Commission has held
that adjudication of a case by the MSPB on its merits is tantamount to
an election of remedies. See Aho v. Department of Agriculture, EEOC
Request No. 05860085 (May 22, 1985).
After carefully reviewing complainant's statements on appeal, we find that
she made an election to challenge the RIF and the resulting abolishment
of her position through the MSPB and may not now raise, through the
agency's EEO process, a claim of reprisal or sex based discrimination
regarding the RIF.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
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 1, 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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.