01a02090
05-19-2000
Howard K. Durfee, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Howard K. Durfee v. Department of Agriculture
01A02090
May 19, 2000
Howard K. Durfee, )
Complainant, )
)
v. ) Appeal No. 01A02090
) Agency Nos. 990748, 990091, 980823
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
We find that the agency's December 10, 1999 final decision which
dismissed the complaints is proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(4)). <1>
This appeal addresses the agency decision to dismiss three separate
complaints filed by Complainant. In Agency Case No. 980823, filed on July
8, 1998, Complainant claimed that he had been discriminated against on
the basis of reprisal when the agency conducted an illegal and improper
investigation regarding his conduct. In Agency Case No. 990091, filed
on October 29, 1998, Complainant once again claimed that he had been
discriminated against on the basis of reprisal when the agency conducted
an illegal investigation on his conduct. In Agency Case No. 990748,
filed on June 2, 1999, Complainant claimed that he had been discriminated
against on the basis of reprisal when he was issued a 21-day suspension.
The record further shows that on June 9, 1999, Complainant filed an
appeal before the Merit Systems Protection Board (MSPB) claiming that,
as reprisal for his "protected union activities, [and] past and ongoing
EEO activity", he had been issued a 21-day suspension without pay.
The agency issued a final decision dismissing all three complaints
"because the issues cited have been raised before the MSPB". After
finding that Complainant had filed two identical complaints regarding
the issue of its investigation of Complainant's conduct, the agency also
determined that the "issue of the investigation into Complainant's conduct
is also dismissed because it is inextricably linked to the suspension
issue". On appeal, Complainant contends that he was never allowed
to present any evidence or testimony due to inadequate representation
before the MSPB. He further contends that while the issues he raised
in his formal complaints were related to harassment as reprisal for his
EEO activity, the issues he raised before the MSPB were related to his
activities as a union officer.
A review of the record does not support Complainant's contentions on
appeal. While he claims that before the MSPB he only raised issues
related to his union activities, in his MSPB appeal form Complainant
stated that he believed the 21-day suspension was the result of reprisal
for his union activities and his past and present EEO activities.
A review of the record shows that the MSPB appeal addressed the issues
raised by Complainant in his formal complaint of discriminations:
the 21-day suspension as well as the steps followed by the agency
(investigation) to make a determination concerning Complainant's alleged
improper conduct. The record further shows that in his MSPB appeal
Complainant stated that the agency's action was in retaliation for his
past and present EEO activities. However, the record also shows that
all three of the instant complaints were filed before the date that
the MSPB appeal was filed, June 9, 1999. Nevertheless, we find that
the instant complaints merged with the matter before the MSPB and were
"inextricably intertwined" with said matter, thereby requiring dismissal
of the complaints. See Moore v. USPS, EEOC Request No. 05970164 (July
23, 1998). Accordingly, the three complaints were properly dismissed
pursuant to 29 C.F.R. �1614.107(a)(4).
Accordingly, the final agency decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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:
May 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ __________________________
DATE Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.