0120121901
09-07-2012
Robert Wilson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert Wilson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121901
Hearing No. 541-2012-00123X
Agency No. 200P-0777-2011104491
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 15, 2012, dismissing a portion of his complaint, as amended, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Health Care Education Specialist at the Agency's Employee Education System, Employee Education Resource Center in Salt Lake City, Utah. On September 24, 2011, he filed a formal complaint alleging that the Agency subjected him to discrimination based on his sex (male), age (56), and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when on July 21, 2011, he was issued a Notification of Unacceptable Performance/Opportunity to Improve (PIP).1
Prior to the Agency's completion of the investigation on his complaint, by letter dated January 18, 2012, as reiterated by him on February 6, 2012, Complainant amended his complaint by adding the basis of disability and the following claims of discrimination based on his age, sex, disability and reprisal for prior EEO activity when:
1. He was demoted from March 21, 2011 to December 30, 2012 from Program Manager to Project Manager and was assigned lower grade level work, such as the creation of a brochure, which a Program Support Assistant would do;2 and
2. He was denied a Program Support Assistant from March 21, 2011 to December 30, 2012 to help him perform the essential functions of his job.
In its FAD the Agency dismissed the amendment. It reasoned that the amended claims were inextricably intertwined with Complainant's January 2012 appeal to the Merit Systems Protection Board (MSPB) on his December 30, 2012 performance based removal.3 It also reasoned that Complainant should have had a reasonable suspicion of discrimination by March 21, 2011, but did not raise his amended claims until January 2012, beyond the 45 calendar day time limit to initiate EEO counseling.4 The Agency did not address Complainant's additional disability basis.5
On appeal Complainant argues that the Agency mischaracterized his amended claims. Using slightly different language than the Agency, we have correctly identified them above. He argues that his amended claims are not appealable to the MSPB and are timely because they are continuing in nature.
In opposition to the appeal the Agency argues that the FAD should be affirmed. It argues that the amended claims are not like and related to the claim Complainant's September 24, 2011, complaint. It argues that Complainant's appeal to the MSPB raises EEO and denial of reasonable accommodation, and his amended complaint claims are inextricably intertwined with his appeal to the MSPB.6
ANALYSIS AND FINDINGS
Where the agency believes that some but not all the claims in a complaint should be dismissed under 29 C.F.R. � 107(a) it shall notify the complainant in writing of its determination, the rationale for that determination and that those claims will not be investigated, and shall place a copy of the notice in the investigative file. Such a determination is reviewable by an AJ if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken on the remainder of the complaint. 29 C.F.R. � 1614.107(b). A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. 29 C.F.R. � 1614.106(d).
Commission records reveal that in May 2012 Complainant requested a hearing on his September 24, 2011, complaint, it was assigned to an AJ in August 2012, and it is still pending. Under 29 C.F.R. � 1614.107(b), the Agency erroneously issued a FAD dismissing a portion of Complainant's complaint, as amended, rather, than sending Complainant a written determination reviewable by an AJ if a hearing was requested.
Accordingly, the FAD is VACATED. The Agency shall comply with the order below.
ORDER
Within 15 calendar days after this decision becomes final the Agency is ordered to notify the AJ presiding over the hearing process on Complainant's complaint filed on September 24, 2011 (EEOC hearing number 541-2012-00123X) that the FAD dismissing Complainant's amended claims was vacated by the Commission, and to present the requested amendments to the AJ for appropriate action thereon. In doing so the Agency shall explain to the AJ in writing that it is complying with this decision, and submit a copy of this decision to the AJ.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
September 7, 2012
__________________
Date
1 The Agency determined that because the complaint was alleging a proposal to take a personnel action, the bases of age and sex were dismissed. It relied on 29 C.F.R. � 1614.107(a)(5). However, it accepted the basis of reprisal on the grounds that a PIP could deter a reasonable person participating in the EEO process, and reprisal claims acceptable for investigation are not limited to actions affecting terms and conditions of employment. Because this was a partial dismissal the Agency, in compliance with 29 C.F.R. � 1614.107(b), wrote Complainant a letter dated October 26, 2011, setting out the above, and advising him that there was no immediate right to appeal.
2 In its FAD the Agency stated Complainant's Notification of Personnel Action revealed no change in occupation code or grade up to his removal effective December 30, 2011. It appears this claim would be better characterized as concerning assignments.
3 In EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 4, Sec. II.B.4.d (located at pages 4-5, 4-6) (EEO-MD-110) (November 9, 1999), the Commission advised that where a complainant has pending a non-mixed case complaint or a series of non-mixed complaints and the claims in those complaints are inextricably intertwined with an appeal on a claim that is appealable to the MSPB, the agency should file with the MSPB a motion to consolidate the non-mixed case claim with the mixed case appeal. As an example the Commission wrote that an allegedly discriminatory performance evaluation and subsequent placement on a PIP are non-mixed claims that may culminate in a removal, which is appealable to the MSPB. Chap. Sec. II.B.4.d was deleted by the Commission in EEOC Equal Employment Opportunity Management Bulletin EEO-MB 100-1 (October 24, 2003). The Commission explained that the EEOC's Office of Federal Operations was notified by the MSPB that the deleted language improperly advised parties on MSPB procedures and jurisdiction because it constituted a request for an MSPB Judge to hear matters which may not be within the jurisdiction of the MSPB. The doctrine of inextricably intertwined was effectively overturned because the MSPB generally does not have jurisdiction over non-appealable matters, even if they are connected with appealable matters. We note, however, that a proposed action merges with the decision on an appealable action, i.e., a proposed removal merges into a decision to remove.
4 29 C.F.R. � 1614.106(d) permits a complainant to amend a pending complaint to add claims that are like and related to those claim(s) raised in the pending complaint. EEO-MD-110, at Chap. 5.III.B, located at page 5-9, provides that there is no requirement that a complainant seek counseling on these new claims. In Braxton v. United States Postal Service, EEOC Appeal No. (Oct. 29, 2010) the Commission ruled that the 45 day time limit in 29 C.F.R. � 1614.105 to initiate EEO counseling only applies to Counselor contact, not subsequent attempts to amend a complaint. We are not addressing whether this advice applies to the portion of the amended complaint that occurred prior to the complaint being filed.
5 In the summary of the report of investigation, the EEO investigator acknowledged that in his statement Complainant indicated his desire to add disability to his claim.
6 The EEOC called the MSPB to get the docket number of Complainant's appeal to the MSPB. It is DE-0432-12-0130-I-1.
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0120121901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121901