Thomas G. Calabrese, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 30, 2004
01A32646_r (E.E.O.C. Jun. 30, 2004)

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.