0120172476
01-04-2018
Virginia V,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Virginia V,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172476
Agency No. ARCELROCK15SEP03802
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 21, 2015, dismissing her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Complainant worked as an Equal Employment Opportunity Manager at an Agency facility in Little Rock, Arkansas. Effective June 9, 2006, the Agency removed Complainant from employment, citing "disgraceful conduct of a federal employee" and "making false statements and lying to your supervisor." On June 30, 2006, Complainant filed a mixed case appeal with the Merit Systems Protection Board (MSPB) regarding the removal action, including an allegation of retaliation. On August 15, 2006, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American), sex (female), and reprisal for prior protected EEO activity when it subjected her to hostile work environment harassment and removed her from employment. Complainant's filing of an MSPB appeal before filing an EEO complaint equated to an election to proceed in the mixed case (MSPB) process.
In October 2006, the MSPB issued an Initial Decision affirming the June 2006 removal, and the full Board denied Complainant's subsequent petition for review. Complainant petitioned for judicial review with a federal court. The federal court also affirmed the removal action.
In August 2015, Complainant attended a Federal training conference during which she states an anonymous source told her "the real reason" for her 2006 removal. On October 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, age (50 at time of removal), and reprisal for prior protected EEO activity when it removed her from employment in 2006.
The Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(4), for electing to pursue the same matter in the non-EEO process. The Agency stated that Complainant filed a mixed case appeal and an EEO complaint regarding her removal, and subsequently withdrew her EEO complaint because she elected the MSPB process. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non-EEO process.
The record shows that Complainant filed an MSPB appeal on June 30, 2006 and an EEO complaint on August 15, 2006. The earlier filing date rendered the MSPB process the elected process. The MSPB issued an Initial Decision affirming the removal, which Complainant petitioned for review to the full MSPB Board and then a federal court. The federal court affirmed the June 2006 removal as well.
Based on the above, we find that Complainant raised the same matter before the MSPB and that the dismissal by the Agency pursuant to 29 C.F.R. � 1614.107(a)(4) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 4, 2018
__________________
Date
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.
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