Harold E. Scheid, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 27, 2004
01A24526 (E.E.O.C. Feb. 27, 2004)

01A24526

02-27-2004

Harold E. Scheid, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Harold E. Scheid v. United States Postal Service

01A24526

02-27-04

.

Harold E. Scheid,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24526

Agency Nos. 1D-297-0002-00, 1D-297-0003-00, 1D-297-0010-00

Hearing No. 140-A1-8230X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission vacates

and remands the agency's final order.

ISSUE PRESENTED

Whether the agency properly issued a final agency decision on

complainant's claims of harassment, Agency Nos. 1D-297-0002-00,

1D-297-0003-00, 1D-297-0010-00, after an EEOC Administrative (AJ) remanded

the claims as a mixed case complaint pursuant to 29 C.F.R. � 1614.302(d).

BACKGROUND

Harassment claims (Agency Nos. 1D-297-0002-00, 1D-297-0003-00,

1D-297-0010-00)

The record reveals that complainant, a Supervisor Distribution Operations

at the agency's Greenville P & DC, Greenville, South Carolina facility,

filed three formal EEO complaints. On April 14, 2000, complainant

filed Agency Nos. 1D-297-0003-00 and 1D-297-0010-00, and on December 22,

2000, he filed Agency No. 1D-297-0002-00. He alleged that the agency

discriminated against him on the bases of race (Caucasian), sex (male),

disability (Bipolar Affective Disorder & Depression), and reprisal

for prior EEO activity when he was harassed. Complainant submitted

thirty-one incidents, to prove his claim of harassment. The incidents

in pertinent part included, management undermining his authority with his

employees, management questioning his supervisory skills and performance,

management requesting medical documentation and denying his request for

reasonable accommodation, management changing his work hours and denying

him overtime and leave, management refusing his request for help, and

management continually paging him.

At the conclusion of the investigations, complainant was provided a copy

of the investigative reports and requested a hearing before an EEOC

Administrative Judge (AJ). Complainant also requested that the three

cases be consolidated, and the AJ ordered consolidation of the complaints.

Reduction in grade and pay claim (Agency No. 1D-297-0018-01)

During this same time period, on August 23, 2001, complainant filed

an appeal, Agency No. 1D-297-0018-01, MSPB No. AT-0752-01-0839-I-1,

with the Merit Systems Protection Board (MSPB) regarding the agency's

action of reducing complainant's grade and pay. On September 10, 2001,

the agency submitted a motion to the MSPB to dismiss the appeal as moot

because it had rescinded the reduction in grade and pay action, and

reinstated complainant to his EAS-16 supervisory position with back pay.

The MSPB first denied the agency's motion due to complainant's outstanding

claims of compensatory damages and attorney fees. On January 28, 2002,

however, the MSPB AJ dismissed the matter for lack of jurisdiction,

finding that complainant elected the EEO process on October 5, 2001,

after being presented the option of choosing the EEO process or having

the case labeled a mixed case before the Board.

Failure to accommodate claim (Agency No. 1-C-297-0008-02)

On February 26, 2002, complainant filed another EEO complaint, Agency

No. 1-C-297-0008-02, alleging that he was discriminated against on

the basis of disability and reprisal for prior EEO activity when:

(1) on or about January 2002, he was forced to apply for disability

retirement because disability accommodations had not been granted; (2)

on January 14, 2002, he learned that an agency official told the Office

of Personnel Management (OPM) that "he never requested his job back,"

and he believed this action was part of the agency's continuous effort

to deny him reasonable accommodation and to stop his application for

disability retirement; (3) in November 2000 and ongoing, his requests

for reasonable accommodation were not honored by management; (4) since

July 6, 2001, he was forced to use his annual and sick leave because

the agency never called him back to duty after the agency instructed

him not to return to work until further notice; and (5) from July 6,

2001 through August 2, 2001, the agency denied him leave.

On March 9, 2002, complainant filed a Motion to Consolidate Agency

No. 1-C-297-0008-02 with his harassment claims before the EEOC AJ. See

EEOC AJ Dismissal, infra. Thereafter, the agency dismissed his complaint.

Specifically, the agency found that claims 1 and 2 were previously raised

in Agency Nos. 1D-297-0003-00 and 1D-297-0002-01. Further, the agency

dismissed claims 3 - 5 on the grounds of untimely EEO Counselor contact.

On May 15, 2003, the Commission, in EEOC Appeal No. 01A22857, determined

that the issues should be viewed comprehensively as interrelated matters

that comprise a single claim of failure to accommodate culminating in

job separation. The Commission reversed the agency's dismissal and

remanded the matter for processing consistent with 29 C.F.R. � 1614.108.

EEOC AJ Dismissal

On May 9, 2002, the EEOC AJ dismissed complainant's hearing request and

returned the investigative files to the agency. She noted that the MSPB

had retained jurisdiction of the agency's action of reducing complainant's

grade and pay, Agency No. 1D-297-0018-01.<1> She then identified Agency

No. 1-C-297-0008-02 as a claim of constructive discharge. She found

that complainant's harassment claims, Agency Nos. 1D-297-0003-00,

1D-297-0010-00, and 1D-297-0002-00, were �inextricably intertwined� with

the constructive discharge/failure to accommodate claim, Agency Complaint

No. 1-C-297-0008-02. Therefore, she found that the harassment claims

and the constructive discharge/failure to accommodate claim constituted

a mixed case complaint. In accordance with 29 C.F.R. � 1614.302(d),

she ordered the agency to issue a final agency decision in this matter

with appeal rights to the MSPB.

Final Agency Decision

On July 22, 2002, the agency issued a final agency decision (FAD) only

as to complainant's harassment claims. In the FAD, the agency stated

that, on May 9, 2002, the EEOC AJ dismissed the case to the agency

under the �mis-identification� that it was a mixed case. The agency

then found that: complainant failed to establish a prima facie case of

race and sex discrimination based on disparate treatment; he failed

to show that the incidents complained of were sufficiently severe or

pervasive to create a hostile work environment; he failed to show that

he was retaliated against; and he failed to prove a prima facie case of

disability discrimination. It found that management's actions were based

on complainant's failure to follow instructions and work performance.

The agency concluded that complainant failed to prove discrimination on

the basis of disability, race, sex, and/or retaliation.

ANALYSIS AND FINDINGS

Upon review of the record, the Commission finds that the agency

erred when it issued its FAD as to the harassment claims. We first

note that, once the EEOC AJ found that the harassment claims and the

constructive discharge/failure to accommodate claim were a mixed matter,

the agency should have processed the claims in accordance with 29 C.F.R. �

1614.302(d) as directed. The MSPB then would have made a determination

as to whether it would exercise jurisdiction over the claims. See 29

C.F.R. � 1614.302(d)(3).

The Commission determines that, since the complainant's complaints

have been pending in the EEO process for several years, we will assume

jurisdiction over these claims. The complainant's complaints are firmly

enmeshed in the EEO forum, and it would better serve the interests of

judicial economy to address his complaints in this forum than remand

them for consideration to the MSPB process. See Burton v. Department

of Agriculture, EEOC Appeal No. 01932449 (October 28, 1994). We note

that the agency's earlier fragmentation of complainant's claims,

represents an erroneous piecemeal method for addressing the overriding

harassment allegation which ultimately led to complainant's separation

from the agency. See Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997). Accordingly, complainant is entitled to

proceed on the instant complaints, recommencing the hearing process from

the point at which his harassment claims was dismissed.

To the extent possible, the harassment claims should be consolidated

with the constructive discharge/failure to accommodate claim, as well

as with the reduction in grade claim. If, however, the constructive

discharge/failure to accommodate claim and/or reduction in grade claim

cannot be consolidated with the harassment claims, then complainant is

entitled to proceed on the harassment claims, recommencing the hearing

process from the point at which his complaints were dismissed.

CONCLUSION

Accordingly, we vacate the FAD and remand the complaints to the hearings

unit for continued processing, in accordance with the Order below.

ORDER

The agency shall consolidate Agency Nos. 1D-297-0003-00, 1D-297-0010-00,

and 1D-297-0002-00 (harassment claims) with Agency No. 1-C-297-0008-02

(constructive discharge/failure to accommodate) and Agency

No. 1D-297-0018-01 (reduction in pay and grade) to the extent possible.

However, to the extent that Agency Nos. 1D-297-0003-00, 1D-297-0010-00,

and 1D-297-0002-00 cannot be consolidated with either of the other two

complaints, the agency shall submit to the Hearings Unit of the EEOC's

Charlotte 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 AJ 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 (R0900)

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 (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

__02-27-04________________

Date

1 It appears that the parties failed to apprize the EEOC AJ of the

January 28, 2002 dismissal of the matter by the MSPB AJ for lack of

jurisdiction.