07A20069_r
10-11-2002
Anthony T. Lee v. Department of Justice
07A20069
October 11, 2002
.
Anthony T. Lee,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A20069
Agency No. I-98-C060
DECISION
The instant appeal is from the agency's final decision dated September 24,
2001, declining to fully implement the August 23, 2001 Order of Dismissal
by the EEOC Administrative Judge (AJ). In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race,
sex, and in reprisal for prior union activity, when:
Complainant was placed on AWOL (absent without approved leave) on five
occasions;
Complainant's time and attendance records were amended, reversing
compensatory time worked on December 13th, 20th, and 21st, 1997;
Complainant was not assigned work from February 1998 through June 1998;
Complainant's supervisor wore a miniskirt while in Complainant's work
area;
Complainant was placed on leave restriction;
Complainant was denied access to his time and attendance records on
March 2, 1998;
Complainant was threatened by his supervisor on February 26, 1998,
and on or about April 20, 1998.
The agency filed a Motion to Dismiss, dated February 23, 2001.
In response, complainant withdrew claim 4, as well as his claim of
reprisal. In her August 23, 2001 Order Dismissing Complaint, the AJ
dismissed claims 1, 2, 3, 5, and 6, on the grounds that complainant had
previously raised the same claims in a prior appeal to the Merit Systems
Protection Board (MSPB), which precluded consideration of the same claims
before the EEOC. The AJ dismissed claim 7 for failure to state a claim.
The agency did not fully implement the AJ's decision. The agency's final
decision rejected the AJ's dismissal of claims 1, 2, 3, 5, and 6, arguing
that the AJ incorrectly concluded that complainant was now estopped from
raising these claims in the EEO forum. On appeal, both complainant
and the agency contend that since the MSPB determined that it lacked
jurisdiction over complainant's MSPB appeal, complainant is entitled to
a hearing on claims 1, 2, 3, 5, and 6, in the EEO forum. The agency and
complainant both request reversal of the AJ's decision regarding claims
1, 2, 3, 5, and 6. The agency agreed with the AJ's dismissal of claim
7 for failure to state a claim.
The Commission finds that because complainant has withdrawn claim 4
and the claim of reprisal, we do not consider those issues on appeal.
To the extent that complainant is contesting the agency's dismissal
of claim 7, we find that claim 7 is insufficient to render complainant
aggrieved and that claim 7 was properly dismissed for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding claims 1, 2, 3, 5, and 6, we find that these matters were not
considered in the MSPB's decision addressing complainant's constructive
discharge. Therefore, we find that complainant is not collaterally
estopped from raising claims 1, 2, 3, 5, or 6, in the instant EEO
complaint. Therefore, we agree with the agency that the AJ improperly
dismissed claims 1, 2, 3, 5, and 6.
The dismissal of claim 7 is AFFIRMED. The dismissal of claims 1, 2, 3,
5, and 6, is REVERSED and we REMAND claims 1, 2, 3, 5, and 6, to the
agency for further processing in accordance with this decision and the
Order herein.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
October 11, 2002
__________________
Date