on the grounds of handicap discrimination the DHHS' alleged denial of plaintiff's requested within grade increase in June, 1985 and the DHHS' alleged removal of plaintiff from her position on June 21, 1985 (hereafter referred to as "the 1985 DHHS employment actions"). However, plaintiff shall not be allowed to seek any relief in this forum based solely on the DHHS' alleged rescission of these two actions in October, 1987.
Administrative complaint number FSA-418-88 was brought by plaintiff on June 24, 1988 pursuant to regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") (29 C.F.R. Part 1613). (Declaration of Harriette Treloar filed in this action on February 15, 1991 ("Treloar declaration") P20.) In the complaint, plaintiff asserted that each of the three following actions were products of handicap discrimination and reprisal against plaintiff for her prior EEO activity:
(a) DHHS' denial of plaintiff's within grade increase in June, 1985,
(b) DHHS' removal of plaintiff from her position on June 21, 1985,
(c) DHHS' decision to simply rescind these two acts in October, allegedly without providing plaintiff adequate relief for the harm in which these two acts resulted.
(Treloar decl. P20; Ex. 9 to Treloar decl.; Exs. 1, 6 to plaintiff's response to tentative order ("plaintiff's response").)
Because the procedural history of the administrative actions surrounding this complaint is complicated, we briefly summarize it below for reference. Where relevant, the details of these various administrative actions will be discussed in our opinion, but we find it useful to set out a "roadmap" of the various events.
07/07/85 Plaintiff appeals to the MSPB the 1985 DHHS employment actions.
(Treloar decl. P17.)
08/17/87 Plaintiff refiles her MSPB appeals for a final time after having
received a number of extensions due to ill health. In these appeals,
plaintiff alleges handicap discrimination, age discrimination, and
reprisal. (Treloar decl. P17, Exs. 2, 3 to plaintiff's response.)
10/87 DHHS rescinds the 1985 DHHS employment actions. (Treloar decl. P17.)
11/13/87 In an initial decision, the MSPB dismisses plaintiff's appeals as
moot. (Ex. 6 to Treloar decl.)
04/14/88 MSPB finalizes its decision dismissing plaintiff's appeals as moot.
The MSPB notifies plaintiff that she may seek review of its
decision before the Court of Appeals for the Federal Circuit. (Ex. 4
to plaintiff's response.)
05/16/88 Plaintiff seeks counseling with an EEOC counselor on the issues
subsequently raised in FSA-418-88. (According to counsel for
defendant in defendant's 2/17/92 opposition brief, page 3, lines
06/24/88 Plaintiff files EEO complaint number FSA-418-88 with the DHHS.
(Treloar decl. P20.)
08/25/88 The DHHS rejects plaintiff's complaint pursuant to 29 C.F.R. §
1613.405(a). (Ex. 1 to plaintiff's response.)
01/24/89 Following plaintiff's appeal of the DHHS rejection to the EEOC/ORA,
the EEOC/ORA dismisses the appeal pursuant to 29 C.F.R.
§ 1613.405(a) but informs plaintiff that, once the MSPB issues a
final decision, she may seek review by the EEOC/ORA of "issues of
prohibited discrimination that the MSPB considered in reaching its
decision." (Ex. 5 to plaintiff's response.) (Apparently, the
EEOC/ORA was unaware at this time that the MSPB had already issued
its final decision.)
10/02/89 Following plaintiff's request that the EEOC/ORA reconsider its
prior order, the EEOC/ORA issues a decision denying the request.
The EEOC/ORA incorrectly finds that plaintiff did not raise
allegations of discrimination her MSPB appeals and that the prior
EEOC/ORA order thus was incorrect in telling plaintiff she could
seek review of the MSPB decision before the EEOC/ORA. (Ex. 9 to
Treloar decl; Ex. 6 to plaintiff's response.)
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