Sherry J. Oshiver, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 11, 1999
01970641 (E.E.O.C. Jan. 11, 1999)

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