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.