01970641
01-11-1999
Sherry J. Oshiver, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Sherry J. Oshiver v. Department of the Interior
01970641
January 11, 1999
Sherry J. Oshiver, )
Appellant, )
)
v. ) Appeal No. 01970641
) Agency No. LLM-960425
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
___________________________________)
DISMISSAL
Appellant filed the instant appeal on October 29, 1996. Appellant filed
a complaint dated August 21, 1996 alleging that she was discriminated
against on the bases of sex and retaliation. The agency subsequently
separated the August 21, 1996 complaint in what the agency referred to as
two separate complaints (assigned agency numbers OS-96-014 and OS-96-015).
By letter dated October 2, 1996 (OS-96-015) the agency stated that it
was accepting the following allegation as a mixed case complaint:
You were not hired through the Reemployment Priority List.
The agency informed appellant that the mixed case complaint would be
processed in accordance with 29 C.F.R. �1614.302(d).
By separate letter dated October 2, 1996 (OS-96-014) the agency
accepted the following allegations to be processed in accordance with
29 C.F.R. �1614.101 - �1614.110:
You were not selected to serve on the U.S. Bureau of Mines Closure Team.
You were not placed non-competitively in a GS-14 position with the Bureau
of Land Management.
In documents submitted with the notice of her appeal on October 29, 1996
appellant argues that the agency ignored her allegation that she was
terminated from her permanent GS-14 position. By letter dated December
10, 1996 the agency informed appellant that the accepted allegations in
OS-96-015 were revised as follows:
You were removed from your GS-14 position at the U.S. Bureau of Mines
through reduction in force (RIF) and related procedures and you were
not transferred to or placed in a permanent status position with the
U.S. Geological Survey (USGS).
You were not hired through the Re-employment Priority List.
On appeal appellant argues that the two allegations listed in the agency's
December 10, 1996 letter were improperly characterized as a mixed case
complaint and should be included with her other allegations.
The Commission finds that all allegations raised in appellant's complaint
dated August 21, 1996 have been accepted for processing. Therefore,
we find that appellant has no right in these circumstances to file an
appeal with the Commission because no allegations have been dismissed.
See 29 C.F.R. �1614.401. Furthermore, appellant's challenge of the
agency's decision to treat a portion of appellant's complaint as
a mixed case complaint is premature. The Commission notes that 29
C.F.R. �1614.302(c)(2)(ii) provides:
If the MSPB's [Merit Systems Protection Board] administrative judge
finds that MSPB does not have jurisdiction over the matter, the agency
shall recommence processing of the mixed case complaint as a non-mixed
case EEO complaint.
The instant appeal is DISMISSED.
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. �l6l4.604(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:
January 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations