Pamela Wilson,
Complainant,

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120102211

Agency No. 200I-0316-2010101099

DECISION

BACKGROUND

On May 3, 2010, Complainant filed an appeal with this Commission from the Agency's decision dated March 26, 2010, 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 the grounds of untimely filing of her complaint. For the reasons that follow, the Agency's decision is REVERSED.

In its decision, the Agency defined the issues of the complaint as whether the Agency had discriminated against Complainant based on her disability and reprisal for prior EEO activity when:

(1) On December 3, 2009, Complainant received a fully successful rating on her performance evaluation which was lower than anticipated.
(2) On December 18, 2009, Complainant was terminated during her probationary period.
(3) Between July 2009 and November 2009, her request for "handicap parking" as a reasonable accommodation was denied.
(4) On November 5, 2009 and December 11, 2009, Complainant received two additional parking tickets and a letter of counseling for parking in a "handicap space."1

In its decision, the Agency dismissed the complaint on the grounds that Complainant failed to file her complaint within the requisite 15 days from the date of the receipt of the Notice of Right to File a Discrimination Complaint (NORF). In so concluding, the Agency noted that Complainant received the NORTF on January 7, 2010, and therefore had to file the formal complaint by January 22, 2010. The Agency found that Complainant did not file her complaint until January 25, 2010, and, thus, the complaint was untimely. The Agency also noted that Complainant's filing with the Merit Systems Protection Board (MSPB) had no impact on timeliness.

On appeal, Complainant asserts that she did not file a complaint within 15 days because after speaking to her EEO Counselor and informing the EEO Counselor that she had filed an appeal with the MSPB, the EEO Counselor informed her that she could not file a discrimination complaint because she had already filed with the MSPB.

The Agency maintains that the complaint was untimely although she knew the time requirements. The Agency also asserts that complainant failed to demonstrate good cause for waiving the time requirements, noting that any alleged inaccuracies and misstatements which Complainant attributed to the EEO Counselor or other improper advice that she received regarding filing with the MSPB did not constitute good cause nor enable complainant to meet her burden.

ANALYSIS AND FINDINGS

The record reveals that Complainant filed an appeal (AT-315H-10-0287-1-1) with the MSPB on December 29, 2009, regarding her termination from the Agency.2 MSPB Initial Decision, Jan. 20, 2010. The MSPB's Initial Decision reflects that on January 14, 2010, Complainant orally withdrew her appeal in order to pursue her termination through the EEO process. Id. The MSPB concluded in its Initial Decision that Complainant's withdrawal of her appeal was an "act of finality" that removed the matter from the MSPB's jurisdiction and dismissed the appeal. Id.

The record reveals that complainant was informed in a NORF that she had to file a complaint within 15 days of having received the notice of right to file. Notice of Right to File a Discrimination Complaint. Complainant was also informed in the NORF that if she were complaining about a matter appealable to the Merit Systems Protection Board (MSPB), she could file an EEO complaint or an MSPB appeal, but not both.

In an electronic mail message between Complainant and the EEO Counselor, Complainant informed the EEO Counselor that she had filed her complaint with the MSPB and she needed to find out whether doing so would prohibit her from filing an EEO complaint. Electronic Mail, Jan. 8, 2010. In his reply to Complainant's question, the EEO Counselor told Complainant that if she filed with the MSPB, she was prohibited from filing a complaint with the Agency. Id., Jan 11, 2010. In a subsequent electronic mail message, Complainant wrote to the EEO Counselor that she had met with an attorney who had extensive experience with the MSPB and the attorney explained to her that her case would likely be rejected by the MSPB based on her status as a probationary employee. Complainant stated further to the EEO Counselor in the electronic mail that based on her conversation with the attorney and her understanding of the MSPB, she was going to pursue her formal complaint against the Agency and to let her know what she (Complainant) needed to do to get the process started. Id., Jan. 12, 2010.

In a reply to Complainant's January 12, 2010 electronic mail, the EEO Counselor stated that he was sure that the MSPB would dismiss Complainant's case. He stated further that Complainant had made an election by filing with the MSPB and that if Complainant filed her complaint with the Agency, it would be dismissed because Complainant had elected to file first with the MSPB. Id., Jan.13, 2010. The EEO Counselor further stated that he "would advise" Complainant to wait until the MSPB made a decision before she filed her formal complaint. Id. He also informed Complainant in the electronic mail that the Agency would have to accept the complaint, once the MSPB made its determination that her MSPB claim did not meet its criteria for MSPB jurisdiction. Id.

EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint.

EEOC Regulation 29 C.F.R. § 1614.301(a)(1) defines a mixed case complaint as a complaint of discrimination filed with an agency based on discrimination related to or stemming from an action that can be appealed to the MSPB. EEOC Regulation 29 C.F.R. § 1614.301(a)(2) provides that a mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination. EEOC Regulation 29 C.F.R. § 1614.301(b) provides further that an aggrieved individual may file a mixed case complaint with the agency or a mixed case appeal with the MSPB, but not both.

The Commission has held that once a complainant elects to proceed in the MSPB forum, the withdrawal of the MSPB appeal does not negate a prior election. See Hammond v. General Services Administration, EEOC Request No. 05940428 (August 25, 1994); Doolittle v. United States Postal Service, EEOC Appeal No. 0120081329 (March 12, 2009). See also, Bowers v. Department of Defense, EEOC Appeal No. 0720070012 (March 22, 2010); Gilmore v United States Postal Service, EEOC Appeal No. 0120091537 (June 10, 2009)(complainant's MSPB appeal dismissed after she withdrew MSPB appeal and agency ordered to process complainant's discrimination complaint) citing Schmitt v. Department. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) and Phillips v. Department of the Army, EEOC Request No. 05900883 (October 12, 1990).

In the instant case, we find that Complainant filed her complaint, three days after the 15-day period for timely filing her complaint had elapsed. We find, further however, that Complainant was specifically advised in writing by the EEO Counselor in a January 13, 2010 electronic mail to wait until the MSPB made a decision before filing her formal complaint. Complainant filed the complaint on January 25, 2010, after the MSPB's January 20, 2010 dismissal of her appeal. We conclude that although the complaint was untimely filed, it is appropriate to extend the time pursuant to 29 C.F.R. § 1614.604(c). Here, Complainant relied on the advice of the EEO Counselor to her detriment. Accordingly, the Agency's dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2) was improper.

CONCLUSION

The Agency's dismissal of the complaint is REVERSED and the matter is REMANDED to the Agency for further processing consistent with the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

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 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 (R0610)

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 (Z0610)

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

September 21, 2010
__________________
Date

1 The Counselor's Report reflects that Complainant had a prior complaint, Agency No. 2001-0316-2009104000, in which she alleged that she was denied reasonable accommodation/parking. EEO Counselor's Report, Jan. 15, 2010.
2 The Initial Decision is the only MSPB document contained in the record and it only references the termination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

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