Toni M.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120143085 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Toni M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120143085 Agency No. 2003-0549-2013102078 DISMISSAL OF APPEAL By Notice of Appeal postmarked August 19, 2014, Complainant filed an appeal with this Commission from the Agency’s final decision (FAD) dated July 15, 2014, concerning her EEO 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. In her complaint, she alleged that members of her management chain at the Bonham Medical Center in Bonham, Texas had discriminated against her on the bases of gender, color, religion, perceived disability, and reprisal by terminating her from her federal service position of Motor Vehicle Operator, effective September 16, 2013. FAD, p. 2. The regulations of the Merit Systems Protection Board (MSPB) confer upon that Board appellate jurisdiction over removal actions, which are defined as terminations of employment after completion of a probationary or other initial service period. See 5 C.F.R. §1201.3(a)(1). Complaints alleging employment discrimination in connection with removals and the other adverse actions delineated in 5 C.F.R. §1201.3 are called “mixed case” complaints, and are processed differently than ordinary complaints. When an Agency issues its final decision on a mixed case complaint, it must advise Complainant of her right to appeal the matter directly to the MSPB, and not to the Commission. 29 C.F.R. § 1614.302(d)(3). Not until after the MSPB issues a ruling on the issue of discrimination raised in the mixed case complaint can Complainant petition the Commission to review that ruling. See 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 29 C.F.R. §§ 1614.303-310. 0120143085 2 In this case, the Agency clearly notified Complainant that her termination on September 16, 2013, was directly appealable to the MSPB and was therefore a mixed case complaint. FAD, p. 1. The decision further informed Complainant that she had the right to appeal the Agency’s final decision on her termination to the MSPB and not the EEOC (emphasis supplied). FAD, p. 11. Accordingly, Complainant’s appeal is hereby dismissed for lack of jurisdiction.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). 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). 2On appeal, Complainant seems to be arguing that an Administrative Judge (AJ) who adjudicated her case abused his or her discretion in not allowing her to present evidence that contradicted the testimony of the Agency’s witnesses. It is not clear, however, what hearing she is referring to. In its FAD, the Agency notes that in addition to the mixed case issue, there was a non-mixed portion of the complaint for which Complainant had requested a hearing before an Equal Employment Opportunity Commission AJ. FAD, p. 1. To the extent that Complainant’s appeal references that matter, it is not now before us. 0120143085 3 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 6, 2016 Date Copy with citationCopy as parenthetical citation