01a21234_r
05-29-2003
Thomas R. Bouchard, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Thomas R. Bouchard v. Social Security Administration
01A21234
May 29, 2003
.
Thomas R. Bouchard,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A21234
Agency No. 98-0649-SSA
Hearing No. 320-A1-8233X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 14, 2002, dismissing pursuant to 29 C.F.R.
� 1614.107(a)(4), his complaint of unlawful employment discrimination
brought pursuant to Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his formal complaint, complainant alleged that he was the victim of
unlawful employment discrimination on the bases of sex, age, disability
and in reprisal for prior protected activity, contending that:
On August 17, 1997, the agency selected a less qualified co-worker for
a certain assignment;
On October 14, 1997, the agency only permitted complainant to take a
30-minute lunch break;
On October 24, 1997, the agency denied complainant's request for
reasonable accommodations;
On November 6, 1997, the agency required complainant to stack cases on
his desk, exacerbating his shoulder injury;
On December 7, 1997, the agency denied complainant's request for
reasonable accommodations.
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 Merits Systems Protection Board (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). EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that
an agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that
the complainant has elected to pursue the non - EEO process.
The record reflects that the MSPB issued a decision on August 8, 2002
(MSPB Docket No. DE-0752-01-0097-I-1), relating to complainant's claim
that he was constructively discharged from agency employment. The MSPB
found that complainant failed to demonstrate that his retirement from
the agency was involuntary, and dismissed his appeal. The Commission
determines that the MSPB decision included consideration of complainant's
harassment and denial of reasonable accommodation claims as raised in
the instant complaint. Furthermore, the MSPB decision indicated that
�related matters� to complainant's constructive discharge claim included
issues associated with performance awards, overtime and leave-related
issues, training, assignment of duties, discipline, and general work
conditions.
The Commission determines that the matters raised in the instant
complaint were either specifically addressed in the MSPB's August
8, 2002 decision on complainant's constructive discharge claim, or
were inextricably intertwined with the constructive discharge claim.
We therefore determine that complainant elected the MSPB forum to
pursue these matters, and conclude that the agency properly dismissed
the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of the instant complaint.
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
May 29, 2003
__________________
Date