Tyrone Holland, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01985572 (E.E.O.C. Feb. 3, 2000)

01985572

02-03-2000

Tyrone Holland, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Tyrone Holland, )

Complainant, )

)

v. ) Appeal No. 01985572

Alexis M. Herman, ) Agency No. 8-04-080

Secretary, )

Department of Labor, )

Agency. )

____________________________________)

DECISION

On June 30, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on June 4, 1998,

pertaining to his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq. <1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of disability (nervous

condition) when:

On October 3, 1997, complainant received an official notice of

termination;

On June 10, 1997, complainant was accused of being late to a mandatory

training session;

Complainant was told that his transcript �looked like it had been pieced

together� and then was accused of refusing to furnish an official copy

of his transcript to the Personnel Department;

Complainant was accused of the improper use of a government vehicle after

a temporary duty (TDY) review to Augusta, Georgia the week of July 21,

1997;

Complainant was accused of taking frequent and lengthy breaks; and

Complainant was harassed daily by his supervisor, who talked

condescending to him causing humiliation, belittlement, low self esteem,

and aggravation to his already weak nervous condition.

The agency dismissed complainant's complaint on the grounds that complaint

has raised the same matter in an appeal to the Merit Systems Protection

Board (MSPB).

On appeal complainant claims that he did not pursue the EEO process

earlier because he had previously filed an MSPB appeal and it was his

understanding that he could not file both an MSPB appeal and an EEO

complaint at the same time. Complainant contends that the MSPB dismissed

his appeal on jurisdictional grounds and he states that he now chooses

to pursue the EEO process to resolve his complaint.

The record contains a copy of complainant's MSPB appeal dated November

13, 1997. A review of the record shows that the MSPB appeal does address

the same issues involved in complainant's EEO complaint; however, the

agency has failed to include a copy of a final MSPB decision, which

complainant contends shows that the MSPB dismissed his complaint on

jurisdictional grounds. Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.302), requires

an aggrieved employee to elect between filing a mixed-case appeal or a

mixed-case complaint with the agency. We note that if the MSPB dismissed

complainant's appeal on jurisdictional grounds, the complaint no longer

satisfied the definition of a mixed-case complaint and the dismissal of

the present complaint on the grounds that complainant had filed an appeal

with the MSPB would be improper. See Weaver v. Department of the Navy,

EEOC Request No. 05900230 (April 26, 1990).

Accordingly, the agency's final decision is VACATED and the matter is

REMANDED for further processing pursuant to the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall undertake a supplemental investigation to determine if

complainant's MSPB appeal was dismissed on jurisdictional grounds.

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall issue a notice of processing or a new FAD regarding

complainant's complaint.

A copy of the agency's notice of processing or new FAD must be sent to

the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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

(R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

February 3, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.