01A40852_r
04-08-2004
Shirley W. McNeil, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Shirley W. McNeil v. Department of the Air Force
01A40852
April 8, 2004
.
Shirley W. McNeil,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40852
Agency No. 5V1C02005
Hearing No. 140-A2-8356X
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4) on the grounds
that complainant filed an appeal to the Merit Systems Protection
Board (MSPB) concerning the same matter. Complainant alleged that
she was subjected to discrimination on the basis of reprisal for
prior EEO activity when, on November 26, 2001, she was issued a
Notice of Opportunity to improve.<1> It is significant to note that
complainant received a poor performance evaluation from her supervisor.
Thereafter, complainant was placed on a Performance Improvement Plan
(PIP) and given 45 days to improve. Later, the supervisor increased the
time for improvement to 63 days because of holidays and complainant's
commitments. At the conclusion of the PIP period, the supervisor still
found complainant's performance to be unacceptable. Consequently,
complainant was removed from her position on May 31, 2002.
The record indicates that complainant filed an MSPB appeal with regard
to the allegedly performance based removal. On January 23, 2003, an
MSPB Administrative Judge (AJ) (MSPB No. CH-0752-02-0509-I-1) found
that complainant's removal was warranted and that there was no evidence
of discrimination based on reprisal for filing the previous EEO claim.
The Commission has held that the adjudication of the case by the MSPB
is tantamount to an election of remedies. See Spriesterbach v. United
States Postal Service, EEOC Appeal No. 01A00346 (April 6, 2000) (citing
Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22,
1985)). Therefore, we find that the instant complaint was properly
dismissed because the instant complaint is inextricably intertwined with
the matter considered by the MSPB.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 8, 2004
__________________
Date
1During the onsite investigation, complainant
withdrew the basis of color.