01a42287
03-07-2005
Richard W. DeGroat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard W. DeGroat v. United States Postal Service
01A42287
March 7, 2005
.
Richard W. DeGroat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42287
Agency No. 1-A-126-0036-01
Hearing No. 160-2004-0009X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final order dated January 26, 2004, dismissing his formal complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal. 29 C.F.R. � 1614.405.
In his formal complaint, dated December 22, 2001, complainant claimed
he was the victim of unlawful employment discrimination on the basis
of disability (obsessive-compulsive disorder) when:
The agency failed to provide him with a reasonable accommodation for
his disability, from October 9, 1998 to July 31, 2001; and
As a result of the above, complainant was compelled to apply for
disability retirement, which was approved in January 2001; and the
agency removed him from its employment rolls on January 31, 2001,
thereby resulting in his constructive discharge.
The agency accepted claims (1) and (2) for investigation, and the
case was forwarded to an EEOC Administrative Judge (AJ) to conduct
a hearing. On January 16, 2004, the AJ issued a decision dismissing
the entire complaint for failure to state a claim. Regarding claim
(1), the AJ determined that complainant could not demonstrate that he
was aggrieved because he failed to establish a prima facie case of
disability discrimination. Regarding claim (2), the AJ determined
that complainant was not aggrieved because he applied for disability
retirement, consequently resulting in his removal from the active
employment rolls. Additionally, the AJ alternatively found that claim
(2) must be dismissed because it is a mixed case complaint, noting that
the Commission has no jurisdiction over constructive discharge claims,
which instead fall under the jurisdiction of the Merit System Protection
Board (MSPB).
The agency's January 26, 2004 final action adopted the AJ's decision.
The instant appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Claim (1)
The Commission determines that the AJ improperly addressed the merits
of the complaint in finding that complainant was not �aggrieved.�
Whether or not complainant established a prima facie case of disability
discrimination goes to the merits of the claim, and is irrelevant to the
procedural issue of whether he is aggrieved by the agency's actions.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996). Accordingly, we find that the AJ and the agency erred
in dismissing claim (1).
Claim (2)
As noted above, the AJ determined that complainant was not aggrieved
when the agency removed him from its active employment rolls because it
was the result of his disability retirement. The Commission determines
that the AJ mis-characterized complainant's claim, and/or improperly
addressed the merits by concluding that complainant voluntarily
requested disability retirement. Based on a fair reading of the record,
we determine that complainant contends that he was compelled to apply
for disability retirement because the agency failed to accommodate his
disability, resulting in a constructive discharge. It is this action,
and not the administrative act of removing complaint from the active
employment rolls after the approval of his disability retirement, which
renders him aggrieved. Accordingly, we find that the AJ and the agency
improperly dismissed claim (2) for failure to state a claim.
Mixed case complaint
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can
be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved
person may initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. �
1201.151, but not both. 29 C.F.R. � 1614.302(b). Further, the agency is
required to inform every employee who is the subject of an action which
is appealable to the MSPB, and who has raised the issue of discrimination
�during the processing of the action,� of the right to file a mixed case
complaint or to file a mixed case appeal with the MSPB. See Gray v. USPS,
EEOC Request No. 05910824 (December 19, 1991); Lauderdale v. Department
of the Army, EEOC Request No. 05910033 (February 15, 1991). The agency's
decision on the merits of a mixed case complaint is appealable to the
MSPB, not the Commission. 29 C.F.R. � 1614.302(d)(1)(ii).
As an initial matter, we determine that claim (1), which addresses
the agency's purported on-going failure to provide complainant with a
reasonable accommodation, is inextricably intertwined with claim (2),
complainant's alleged constructive discharge. Specifically, complainant
contends that the agency's failure to provide him with a quiet work
environment, overtime, caused him to suffer from extreme anxiety
and depression, such that he was unable to continue working, thereby
compelling him to apply for disability retirement. Adjudication of
the reasonable accommodation claim is necessary in order to determine
whether or not complainant's retirement was �voluntary.� Therefore,
we conclude these two claims are inextricably intertwined, and that the
AJ and agency erred in fragmenting these matters.
Furthermore, upon review, we find that the record is devoid of any
evidence that the agency informed complainant of his MSPB election
rights pursuant to 29 C.F.R. � 1614.302(b). In fact, this issue was
apparently raised for the first time in the AJ's decision dismissing the
claim for this reason. When the jurisdiction of the MSPB is in question,
such as in the case of a constructive discharge claim, the AJ should
remand the claim to the agency with an order to process it as a mixed
matter, in accordance with 29 C.F.R. � 1614.302(d). The MSPB would then
made a determination as to whether it would exercise jurisdiction over
the claims. See 29 C.F.R. � 1614.302(d) (3).
Therefore, we find that this case must be remanded back to the agency
to issue a final decision on the merits of complainant's claims, with
appeal rights to the MSPB.
In conclusion, we VACATE the agency's final action, and we REMAND both
claims to the agency for further processing in accordance with the
ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency will issue a new final decision on complainant's mixed case
complaint, which will provide complainant with appropriate and exclusive
appeal rights to the Merit Systems Protection Board consistent with
29 C.F.R. � 1614.302(d). The agency shall submit a copy of the final
decision to the EEOC Compliance Officer as indicated 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 (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
March 7, 2005
__________________
Date