01A32646_r
06-30-2004
Thomas G. Calabrese, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Thomas G. Calabrese v. Department of the Navy
01A32646
June 30, 2004
.
Thomas G. Calabrese,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A32646
Agency No. 02-00681-001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 6, 2003, dismissing his complaint of unlawful
employment discrimination. According to the agency's final decision,
complainant alleged that he was subjected to discrimination on the basis
of disability (depression) when:
1. On May 3, 2001, complainant's supervisor and a Labor Relations
Specialist from the Human Resources Office verbally disbarred complainant
from the base while complainant was on stress leave. On May 23, 2001,
complainant's supervisor disbarred complainant from the base in writing.
On June 14, 2001, complainant received a letter from the Director of
Base Housing prohibiting complainant from having any contacts with the
Base Housing employees while on stress leave.
2. On July 18, 2001, complainant's supervisor did not grant complainant
any advance sick leave; therefore on August 11, 2001, complainant had
to return back to work.
3. On August 16, 2001, complainant asked his supervisor if he could
be excused from attending a staff meeting. Complainant's supervisor
refused complainant's request and complainant was forced to attend the
staff meeting.
4. On September 12, 2001, complainant was not given administrative
leave to pick up his representative from town to participate in a
mediation meeting. Instead, complainant was charged 30 minutes of leave.
5. On October 27, 2001, complainant's first line supervisor made
complainant reschedule his doctor's appointment.
6. On October 31, 2001, a resident from the Wire Mountain Housing area
told complainant his second line supervisor told her not to have any
contact with complainant.
7. On November 15, 2001, complainant received a letter from his second
line supervisor that complainant's conduct was unprofessional and
disruptive when complainant made comments during a training session on
the same day.
8. On November 15, 2001, complainant was not given options about his
work schedule because complainant works ten days per pay period and
eight hours a day in comparison to complainant's co-workers, who work
nine days per pay period and nine/eight hours work schedule (every
other Friday or Monday off).
9. On November 21, 2001, complainant's supervisor questioned and
criticized complainant in front of a customer about housing inspection
paperwork.
10. On or about December 6, 2001, complainant was questioned about the
improper use of the chain of command. On the same day, complainant
was treated differently when his supervisor counseled him about using
the government computer for personal/unofficial business while others
in complainant's chain of command were allowed to use the government
computer to send personal messages and complainant was falsely accused
of using a government vehicle to go to Del Taco on Sunday, November 11,
2001 and complainant did not work on Sunday.
11. On January 7, 2002, complainant's supervisor denied his request
for sick leave starting from January 1 through January 31, 2002, and
requested complainant to provide supporting medical documentation from
his doctor to support the request for sick leave.
12. On January 11, 2002, complainant was placed on administrative leave
until January 15,2002, at which time complainant's sick leave would start.
13. On an unspecified date, complainant's second line supervisor ignored
complainant's doctor's advice and denied complainant sick leave.
14. On January 11, 2002, complainant was confronted by the Assistant
Housing Manager and the Assistant Housing Manager refused to leave
complainant alone after he told him that he was sick and on medication.
15. On an unspecified date, the proposing official recommended
complainant's removal without reviewing any medical documentation.
16. On June 22, 2002, complainant was removed from the position of Housing
Management Assistant, GS-07. Complainant alleged that the deciding
official removed him from federal service without reviewing any medical
documentation. The deciding official stated in the decision letter that
he felt the second line supervisor did not act inappropriately when he
denied complainant's sick leave. The deciding official told complainant
that his actions had nothing to do with his medical condition.
The agency dismissed the claims on numerous grounds.
We find that complainant's complaint was properly dismissed pursuant to
29 C.F.R.� 1614.107(a)(4) on the grounds that complainant filed an appeal
to the Merit Systems Protection Board (MSPB) concerning the same matter.
The record indicates that complainant filed an MSPB appeal with regard
to his removal from his Housing Management Assistant position.
On February 21, 2003, an MSPB Administrative Judge (AJ), in MSPB
No. SH-0752-02-0536-I-2, found that the penalty of removal was within the
parameters of reasonableness. Moreover, the AJ found that complainant
engaged in repeated instances of serious misconduct. The Commission has
held that the adjudication of the case by the MSPB is tantamount to an
election of remedies. See Spriesterbach v. United States Postal Service,
EEOC Appeal No. 01A00346 (April 6, 2000) (citing Aho v. Department of
Agriculture, EEOC Request No. 05860085 (May 22, 1985)). Therefore,
we find that the instant complaint was properly dismissed because the
matters in the instant complaint were either raised in the MSPB appeal,
or are inextricably intertwined with the subject matter considered by
the MSPB.<1>
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
June 30, 2004
__________________
Date
1Because we affirm the dismissal of the
complaint for the reason stated here, we find it unnecessary to address
alternative dismissal grounds.