01986592_r
06-29-2001
Willie Turner, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency) Agency.
Willie Turner v. Department of Defense
01986592
June 29, 2001
.
Willie Turner,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency)
Agency.
Appeal No. 01986592
Agency No. 98EASJDO28
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated August 13, 1998, dismissing his 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race, sex, and age when:
In March 1998, he was demoted from Grocery Department Manager
(GS-1144-10);
On September 17, 1997, he was placed on a Performance Improvement Plan
(PIP);
On July 30, 1997, he received an unacceptable performance evaluation;
On several occasions between December 1995 and February 1998, he was
persuaded to take unwarranted personnel action son his subordinates;
In September 1997, January 1998, and February 1998, his supervisor
criticized his job performance by �nit picking� and
In October 1997, December 1997 and January 1998, the agency did not
provide the assistance he requested.
The agency dismissed claim 1 pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(4)on the grounds that complainant had previously raised
the matter in an appeal to the Merit Systems Protection Board (MSPB).
The agency dismissed claims 2 through 6 pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds that they had not been brought to the
attention of an EEO Counselor and that they were not like or related
to issues brought to the attention of the counselor. Specifically,
the agency found that following complainant's March 30, 1998 contact of
an EEO Counselor regarding his demotion, on April 27, 1998, he filed an
appeal with the MSPB on the same matter. The agency determined that
complainant had elected to pursue the issue of is demotion as an MSPB
matter and not through the EEO process. The agency also found that
claims 2 through 6 had not been brought to the attention of the EEO
Counselor during complainant's EEO contact on March 30, 1998, and were
not like or related to the issue discussed during counseling.
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides, in part, that an
agency may dismiss a complaint where the complainant has raised the same
matter in an appeal to the MSPB. Upon review, we find that complainant
initially contacted an EEO Counselor on March 30, 1998 regarding his
demotion and issues of discrimination. The record indicates that prior
to his filing a formal mixed case EEO complaint, on June 20, 1998,
complainant had filed a mixed case appeal before the MSPB on April
27, 1998.
EEOC Regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved person
may initially file a mixed case complaint with an agency or an appeal
on the same matter with the MSPB, but not both.
Regarding claim (1), complainant elected to appeal the matter raised
therein to the MSPB as evidenced by his appeal dated April 27, 1998.
Because complainant elected to file an appeal with the MSPB prior to his
formal complaint, the Commission determines that complainant's complaint
was properly dismissed pursuant to the EEOC Regulation stated herein.
The record reveals that complainant filed an appeal regarding his demotion
with the MSPB on April 27, 1998. Complainant's subsequent withdrawal
of the discrimination issues in his MSPB appeal did not negate his prior
election. See Hammond v. General Services Administration, EEOC Request
No. 05940428 (August 25, 1994); Dean v. United States Postal Service,
EEOC Appeal No. 01942928 (June 29, 1994). The record reflects that
prior to the time complainant allegedly withdrew the discrimination from
his MSPB appeal, he was on notice of his right to elect a forum between
filing a mixed case appeal with the MSPB and a mixed case EEO complaint
with the agency. Therefore, we find that appellant's prior appeal to
the MSPB constituted an election of forum and the agency's dismissal on
that ground was proper.
The agency dismissed claims (2) - (6) on the grounds that they were not
raised during EEO counseling, and are not like or related to matters
for which complainant underwent EEO counseling. On appeal, however, the
agency argues that assuming arguendo that the matters raised in claims
(2) - (6) were indeed raised during EEO counseling, these matters are
not separate and distinct from the demotion issue raised in claim (1),
and that all six claims were part of complainant's MSPB appeal. The
Commission determines that upon careful review of the record, claims 2
through 6 are merely background evidence to support complainant's claim
that his demotion was discriminatory, and are therefore inextricably
intertwined with the demotion issue articulated in claim (1), which as
discussed above was raised before the MSPB. Accordingly, the agency's
decision dismissing complainant's complaint is hereby AFFIRMED for the
reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 29, 2001
__________________
Date