0120072685
07-01-2009
Yolanda A. Brewer, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Yolanda A. Brewer,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072685
Agency No. 200405582006100032
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 19, 2007, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On November 18, 2005, complainant filed an EEO complaint alleging that
she was harassed and discriminated against based on her association with
a person with a disability when:
1. on October 25, 2005, the Nurse Manager asked her during a staff
meeting why she could not work the evening shift;
2. on August 29, 2005, she was questioned by the Nurse Manager
regarding her leave usage;
3. on September 13, 2004, she was informed by her Nurse Manager
that she could no longer work the 0.9 schedule; and
4. on December 6, 2005, she was notified of a change in her tour
of duty.1
On February 16, 2006, the agency dismissed Issues 1 and 2 above on the
ground that they failed to state a claim. The agency also dismissed
Issue 3 above on the ground that complainant failed to make timely contact
with an EEO Counselor. The agency accepted Issue 4 for processing.
On March 31, 2006, complainant filed a second amendment to her complaint
wherein she alleged she was subjected to discrimination on the basis of
her association with a person with a disability, and reprisal for prior
EEO activity when: (5) on February 22, 2006, the Chief of Nursing told
her that they could not accommodate her request to work the day shift
until she provided more medical documentation on her son's medical
condition; (6) on March 30, 2006, she was placed on sick leave because
she had not been working the evening shift; and (7) on March 30, 2006,
she resigned from her position as a Nursing Assistant.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing, but on November 8, 2006, the AJ denied the hearing request on
the grounds that complainant failed to follow pre-hearing orders. The AJ
remanded the complaint to the agency, and on or about December 28, 2006,
the agency conducted a supplemental investigation. The supplemental
investigation was completed on March 16, 2007. On April 19, 2007,
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she was
subjected to discrimination as alleged, and gave complainant appeal
rights to the Merit Systems Protection Board (MSPB).
On appeal, complainant states that she desires a hearing. In response,
the agency argues that the case was a mixed-case complaint, and should
have been appealed to the MSPB, not the EEOC. The agency submits that
the final decision properly advised complainant of her appeal rights to
the MSPB, yet she appealed to the EEOC.
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 filed 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).
As a general matter, if the complainant is dissatisfied with the agency's
final decision on a mixed-case complaint, the complainant may appeal
the matter to the MSPB (not the EEOC) within 30 days of receipt of the
agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii). At the time
that the agency issues its final decision on a mixed case complaint, the
agency shall advise the complainant of the right to appeal the matter to
the MSPB (not the EEOC) within 30 days of receipt and of the right to file
a civil action as provided at 29 C.F.R. � 1614.310(a). Individuals who
have received a final decision from the MSPB on the appeal of a final
decision on a mixed case complaint may petition the EEOC to consider
the MSPB's decision. 29 C.F.R. � 1614.302(a).
Here, complainant initially filed a non-mixed matter, and then amended
her complaint to include constructive discharge. The case went to an
EEOC AJ, who should have dismissed the case for lack of jurisdiction.
When the case was remanded to the agency, it conducted a supplemental
investigation, and then issued a final decision. The FAD found no
discrimination, and gave complainant mixed case rights and instructed
her to file her appeal with the MSPB, not the EEOC. It advised her
of the address to file her appeal, and the time limit for doing so.
It also indicated complainant could file a civil action. Instead,
complainant filed an appeal with the EEOC.
Accordingly, under the Commission's regulations, the Commission is
without jurisdiction to consider complainant's appeal of the agency's FAD.
Any allegations of error by the agency in the FAD must be considered in
complainant's appeal to the MSPB. After the MSPB issues its decision,
complainant may petition the Commission for review. 29 C.F.R. �
1614.303(a). Complainant's appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 1, 2009
Date
1 Issue 4 was added by an amendment to the complaint on January 4, 2006.
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0120072685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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