01A30066
02-27-2004
Marshall S. Fritz, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Marshall S. Fritz v. Department of Health and Human Services
01A30066
February 27, 2004
.
Marshall S. Fritz,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A30066
Agency No. IHS-037-97
Hearing No. 120-A1-4328X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 the FAD in PART and REMANDS
the case to the EEOC Administrative Judge (AJ) for a decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as an Operations Research Analyst at the agency's Indian Health
Service (IHS) in Rockville, Maryland (�facility�). Complainant sought
EEO counseling and subsequently filed a formal complaint on March 26,
1997, alleging that he was discriminated against on the bases of race
(Caucasian), sex (male), religion (Jewish), disability (respiratory
condition and speech impediment), and reprisal for prior EEO activity
when: (1) from 1988 to 1995, a co-worker harassed him by verbal comments
on the basis of his religion; (2) he was denied the training he requested;
(3) his duties were changed; (4) in March 1990, he did not receive
an award for a suggestion he made; (5) he was denied opportunities
to receive administrative leave for his attendance at union meetings;
(6) in 1993, his time and attendance was audited with annual and sick
leave, religious compensatory time and earned compensatory time balances
adjusted; (7) he was denied outplacement assistance; and (8) he was
denied an accommodation related to air quality conditions.<1>
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an AJ or alternatively, to receive
a final decision by the agency. Complainant requested a hearing before
an AJ, but prior to the hearing, the agency filed a Motion for Partial
Summary Judgment. In its Motion, the agency sought dismissal of all
issues which complainant had previously raised through the negotiated
grievance process and settled through a Settlement Agreement dated May 22,
1995. The AJ granted the agency's Motion based on his prior grievances,
the May 22, 1995 Memoranda of Agreement (MOA) and complainant's failure
to state a claim, and dismissed the complaint.
In so finding, the AJ initially found that complainant's allegations
of disability discrimination were dismissed as he had not proffered
evidence that he had any substantial limitations of any major life
activities. As the AJ found that complainant was thus not covered
by the Rehabilitation Act, all claims based on an allegation that the
agency discriminated against him based on his disability were dismissed.
In addition, the AJ dismissed all of complainant's claims which had
previously been raised and settled in the grievance process. As a
result, the AJ dismissed complainant's allegations regarding denial of
administrative leave for attendance at union meetings as well as the
auditing of his time and attendance. The AJ found that complainant
already raised the issues concerning leave in a grievance which had
previously been processed through to a resolution. Further, the AJ
dismissed complainant's allegations regarding the changing of his duties
and the denial of an accommodation regarding air quality conditions,
as these issues were previously the subject of an agency grievance.
The AJ also dismissed complainant's allegation of a continuing pattern
of harassment, as it was the subject of a prior grievance. Addressing
specific complainant's allegations of harassment, the AJ found that he
failed to demonstrate how he was aggrieved when a co-worker harassed
him by verbal comments regarding his religion. The AJ then noted that
all of the issues which were part of a grievance and resolved through
a Memorandum of Agreement in 1995 were dismissed. The only outstanding
issue related to complainant's denial of outplacement assistance. On that
issue, the AJ found that complainant failed to demonstrate an entitlement
to such assistance, or that he was harmed when he was not provided this
assistance, and therefore complainant failed to state a claim. The AJ
then issued a decision in favor of the agency. The agency then issued its
FAD, affirming the AJ's decision to dismiss the complaint in its entirety.
On appeal, complainant has made numerous contentions. Initially,
complainant contends that the AJ redefined the issues raised in his case
in a way that reduced the scope of his claims and eliminated certain
issues outright. Complainant alleges that the AJ violated the principle
that an agency may not redefine issues that have been articulated by
a complainant. In addition, complainant contends that the AJ erred in
issuing a decision without holding a hearing. Complainant also alleges
that the AJ's determinations violated the �law of the case� doctrine in
redefining the issues relevant to the case. Finally, complainant alleged
that the AJ erred in finding that complainant's negotiated grievances
barred many of his claims. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
We initially address complainant's contention that the AJ erred in
redefining his allegations of discrimination in such a manner that his
claims were reduced and various issues were eliminated from consideration.
In support of this argument, complainant relies on the Commission's
prior holding in Giddo v. FDIC, EEOC Appeal No. 01981837 (May 12,
1999), stating that an agency may not redefine issues that have been
articulated by a complainant. In the instant case, we find that the AJ
did not impermissibly �redefine� the issues articulated by complainant
in his formal complaint or as the issues were defined by the Commission
in its prior decision. When the OFO remanded the instant case to the
agency, it noted that complainant had initially made six (6) allegations
of discrimination. Fritz v. Dept. of Health and Human Services,
EEOC Appeal No. 01975642 (November 10, 1998). In those allegations,
complainant alleged discrimination on the bases of race, religion, sex,
disability and reprisal. Subsequently, complainant alleged seventeen
(17) additional allegations, on the above-stated bases and also alleged
a continuing hostile work environment.
However, the agency failed to address several of complainant's
allegations, and dismissed several others for either failing to state
a claim, as the same claim was pending before the agency or as matters
raised in the allegations of discrimination were the same as matters
raised in a grievance. Complainant appealed the agency's determinations,
and the Commission concurred with the agency's dismissal of allegations
(3), (4), (17), (18), (20) and (21) for failure to state a claim<2>.
Further, the Commission dismissed allegations (12), (15) and (16), as they
state the same claims that were pending before the agency. Finally, the
Commission vacated the agency's dismissal of allegations (1) and (14),
as the agency failed to substantiate the bases for its final decision.
As a result, the Commission remanded allegations (7)-(10), (11), (13),
(19), (22)-(24) to the agency for further processing.
When the case went before the AJ, the agency moved for a dismissal of
issues which complainant had previously raised through the negotiated
grievance process and settled through the MOA dated May 22, 1995. The AJ
invited the parties to submit new statements describing the issues in
the case. By letter dated September 10, 2001, the agency recommended
that the AJ consolidate complainant's multiple allegations. In her
decision, the AJ then broadly outlined eight (8) outstanding issues,
after denying complainant's request to again amend his complainant for
various reasons. We find that the AJ's statement of the issues did not
redefine the issues in such a manner that the scope of his complaint
of discrimination was reduced, or that certain issues were eliminated.
We find that the AJ rather summarized complainant's allegations in such
a manner that his specific claims could be considered under the banner
of a hostile work environment.
Complainant also contended on appeal that the AJ erred in issuing a
summary judgment decision. Specifically, complainant alleged that he was
disadvantaged by the decision without a hearing as the AJ did not give
the parties notice of possible judgment, and an opportunity to be heard
on the specific issues. As argued by the agency, the agency's motion for
summary judgment was sufficient to provide notice to complainant that
a decision without a hearing was possible. See Hart v. United States
Postal Service, EEOC Appeal No. 01A05504 (Sept. 25, 2002)(stating that
agency contention that it was deprived of opportunity to respond to
complainant's motion for summary judgment as agency had knowledge of the
complainant's desire that a summary judgment decision be rendered by an
AJ, and had more than enough time to file its opposition in accordance
with 29 C.F.R. � 1614.109(g)(2)).
In addition, we find that complainant has not demonstrated that he was
prejudiced by failing to receive adequate notice of the AJ's intent
to issue a decision without a hearing. In so finding, we note that 29
C.F.R. �1614.109(g)(3) states that where an AJ determines, upon his or
her own initiative, that some of the facts are not in genuine dispute,
the AJ is required to give notice to the parties and provide them with
15 calendar days within which to respond in writing on the issuance
of decision without holding a hearing. In the instant case, the AJ
was not required to give notice of her intent to issue a decision
without a hearing due to the agency's motion for summary judgment.
We further find that complainant has not provided a persuasive argument
that there was any material issue of fact which would have been altered
by complainant's receiving prior notice of the AJ's intent to issue a
decision without a hearing. See Perez v. United States Postal Service,
EEOC Appeal No. 01986731 (Sept. 7, 2001).
We next address complainant's contention that the AJ erred in finding that
the issues which were resolved in complainant's prior agency grievances
effectively resolved those claims and barred them from being litigated
in the EEO forum. After considering the evidence of record and the
contentions of the parties, the AJ dismissed complainant's allegation
(2) regarding denial of training, as he did not show that he requested
training after 1995, and he resolved the training issue regarding pre-1995
matters in his MOA. The AJ then dismissed complainant's allegation (5),
in which complainant alleged that he was denied opportunities to receive
administrative leave for his attendance at union meetings. The AJ found
that these meetings occurred before 1995, and the issue was resolved in
the MOA. Further, the AJ dismissed complainant's allegation (6), stating
that in 1993, his time and attendance was audited, with annual and sick
leave, religious compensatory time and other compensatory time balances
audited. The AJ found that this issue was part of the MOA and was
resolved in that forum, pursuant to the instructions in the Commission's
prior decision. See Investigative Report (IR) at Exhibit 37A.
The regulation set forth at 29 C.F.R. � 1614.301(a) states that an
aggrieved employee who files a grievance with an agency whose negotiated
agreement permits the acceptance of grievances which allege discrimination
may not thereafter file a complaint on the same matter under this part
of 1614 irrespective of whether the agency has informed the individual
of the need to elect or whether the grievance has raised an issue
of discrimination. The record reveals that complainant filed several
grievances regarding his allegations of harassment due to a hostile work
environment. We note that the record contains a copy of the collective
bargaining agreement which permits allegations of discrimination to be
raised in the agency's negotiated grievance procedure. After a review
of the record, the Commission finds that the alleged hostile work
environment claims raised herein are related to or involve actions
inextricably intertwined with the matters that have been addressed in
the MOA. Specifically, we find that the "additions" to complainant's
complaint addressed by the AJ are part of the hostile work environment
claim challenging management's actions concerning denial of training,
altering of duties, denial of an award from 1990, opportunities to receive
administrative leave and altering of leave and compensatory time balances
from 1993, which were raised during the grievance process. Furthermore,
we note that the MOA decision specifically addresses complainant's claim
that he was subjected to a hostile work environment.
Thus, we find that as complainant elected to raise the issues of the
alleged hostile work environment which existed during the years 1988-1995
in the negotiated grievance procedure, he is now precluded from raising
the same matter in the EEO process. See 29 C.F.R. � 1614.301(a);
O'Leary v. Social Security Admin., EEOC Appeal No. 01A04750 (Oct. 19,
2001). We have considered the MOA and the evidence of record, and find
that the pre-1995 issues which complainant raised in the grievance
forum, were resolved by the terms of the MOA and cannot be litigated
in the EEO process. IR at Exhibit 37A, 42. We thus concur with the
AJ's determination that as the issues raised in these allegations were
resolved through the grievance process, complainant is precluded from
raising them here. AJ's Decision at 3-11. As such, the Commission
concurs with the AJ's finding that allegations (2)-(6) are dismissed as
they were resolved by the 1995 MOA.
However, we disagree with the AJ's determination to dismiss complainant's
allegations (1) and (7) for failure to state a claim. In these
allegations, complainant alleged harassment due to a hostile work
environment when a co-worker made verbal comments to complainant on
the basis of his religion, and he was denied outplacement assistance.
In her decision, the AJ appears to consider the incidents identified
by complainant individually, rather than as a pattern of harassment.
The Commission has previously held that an agency should not ignore the
"pattern aspect" of a complainant's claims and define the issues in a
piecemeal manner where an analogous theme unites the matter complained
of by complainant. Meaney v. Department of Treasury, EEOC Request
No. 05940169 (November 3, 1994). In the present case, complainant
clearly alleged that he was subjected to on-going harassment which
resulted in a hostile work environment, on the basis of his religion.
We note that the events identified occurred over a several year period
and were all allegedly committed by a co-worker or others in management
at the Indian Health Service. Upon a review of the record, we find
that complainant has stated a cognizable claim under EEOC Regulations.
Thus, we find that the AJ's dismissal of the incidents identified above
for failure to state a claim was improper.
Next addressing complainant's allegation of disability discrimination,
we note that complainant alleged that he was discriminated against
by the agency when it refused to accommodate his request for a work
station which did not exacerbate his respiratory impairment. We note
that the AJ summarily found in her decision that complainant failed to
proffer evidence that he had a substantial limitation in any major life
activities. As such, the AJ found that complainant was not covered by
the Rehabilitation Act and thus the agency was not required to provide
him with any accommodation. However, we find that there is sufficient
evidence in the record from which to conclude that complainant's
respiratory impairment was substantial and permanent, and caused him
difficulties at work and in other daily functions. Investigative Report
(IR), at Tab 37. The evidence submitted by complainant suggests that his
symptoms related to the respiratory impairment were episodic and occurred
in his current position. Further, there is evidence that complainant's
secretary observed that complainant's breathing capacity in the office
was diminished over a sustained period. As a result, the Commission finds
that the AJ erred in finding that complainant failed to proffer evidence
of a substantial limitation of any major life activities. As stated by
complainant, while the AJ may determine that complainant is not covered
by the Rehabilitation Act, a full consideration and weighing of the
relevant evidence is required to assure that complainant's allegations
are fully heard. As a result, we will vacate the AJ's finding on the
disability issue and remand the case for the AJ to consider all evidence
relevant to this issue.
CONCLUSION
Accordingly, the AJ's decision to dismiss issues (1) and (7) of
complainant's complaint for failure to state a claim is REVERSED.
Further, the AJ's decision to find in favor of the agency on issue (8)
is REVERSED. As such, the complaint is REMANDED for further processing in
accordance with the Order below. We AFFIRM the AJ's decision to dismiss
issues (2)-(6) of complainant's complaint, as these issues were raised
in the grievance process and resolved by the 1995 MOA.
ORDER
The agency is ORDERED to process the remanded complaint in
accordance with 29 C.F.R. � 1614.109. Specifically, the agency shall
forward complainant's case to the Administrative Judge in the EEOC
Baltimore District Office for a decision on remand consistent with the
Commission's decision. The agency shall forward complainant's case to
the Administrative Judge within thirty (30) calendar days of the date
this decision becomes final. A copy of the agency's correspondence
that transmits the case to the Administrative Judge must be sent to the
Compliance Officer as referenced below.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 27, 2004
__________________
Date
1 We note that in January 1998, complainant filed a complaint with the
Office of Special Counsel (OSC) alleging that he had been subjected
to retaliation for alleged whistleblowing activities. After the
OSC informed complainant that its investigation had been terminated,
complainant filed an individual right of action (IRA) appeal with the
Merit Systems Protection Board (MSPB), asserting that he was subjected
to reprisal for engaging in whistleblowing activities. The MSPB
Administrative Judge dismissed complainant's appeal, but the case was
subsequently remanded to the AJ by the full MSPB. The MSPB AJ found
that complainant's prior grievances precluded his later filing of an
IRA appeal regarding the time and attendance issue, and he was precluded
from appealing the alleged denial of pay for compensatory time issue.
2 We note that the Commission initially found that the agency's failure to
address allegations (7)-(24) was improper. In so finding, the Commission
stated that complainant raised these issues before the agency, and thus
the agency could not simply fail to address them in its decision.