01995303
11-17-2000
Daniel F. Fitzgerald, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Education Activity), Agency.
Daniel F. Fitzgerald v. Department of Defense
01995303
November 17, 2000
.
Daniel F. Fitzgerald,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Education Activity),
Agency.
Appeal No. 01995303
Agency Nos. EU-FY94-26; EU-FY97-10
Hearing Nos. 100-98-7583X; 100-98-7584X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his two consolidated complaints 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against based on age
(D.O.B. 3/19/39), mental disability (bipolar disorder), and in reprisal
for prior protected activity, when: (1) on April 25, 1994, he was issued
a performance improvement plan; and (2) on May 26, 1994, he was issued a
letter of reprimand; (3) he was denied reasonable accommodation; and (4)
his position was excessed and he was reassigned from Germany to Japan.<2>
Following an agency investigation, complainant requested a hearing
on the complaints by an EEOC Administrative Judge (AJ). Meanwhile,
complainant was terminated and filed a mixed case appeal with the Merit
Systems Protection Board (MSPB) challenging his removal as discriminatory.
Inasmuch as it could not be determined whether any of the issues raised in
the instant complaints would be adjudicated by the MSPB, the EEOC AJ, by
letter dated May 28, 1998, remanded the instant complaints to the agency
to be held in abeyance pending disposition of the MSPB mixed case appeal.
The EEOC AJ explained to the agency:
If it is determined that the issues in these cases have been adjudicated
as part of that appeal, I recommend that the agency dismiss this
complaint, pursuant to 29 C.F.R. � 1614.107(d). If it is determined that
the issues have not been adjudicated, the complaint should be remanded
to the EEOC to continue the hearing process.
On April 30, 1999, an MSPB AJ issued the Initial Decision (ID) on
complainant's MSPB mixed case appeal. On May 24, 1999, the agency issued
a FAD dismissing the instant EEO complaints. Complainant's counsel
requested that the agency rescind the FAD as prematurely issued, in
light of complainant's filing of a petition for review (PFR) with the
MSPB on May 28, 1999, but the agency declined to do so. Accordingly,
complainant's counsel filed the instant appeal noting that he believed
the FAD was premature but required the filing of the instant appeal in
light of the issuance of a FAD with appeal rights.
Subsequently, the MSPB issued its decision on complainant's mixed appeal,
and complainant sought review by this Commission, which concurred with
the MSPB determination that complainant had failed to establish his
removal was discriminatory or retaliatory. See Fitzgerald v. Department
of Defense, EEOC Petition No. 03A00086 ( , 2000).
Based on our review of the final MSPB decision with which we concurred,
and its accompanying record, it is clear that the MSPB only adjudicated
the issue of complainant's removal, and did not adjudicate the issues
raised in the instant complaints. Accordingly, complainant is entitled to
proceed on the instant complaints, recommencing the hearing process from
the point at which his complaints were remanded to be held in abeyance.
Accordingly, we VACATE the FAD and REMAND the complaints to the hearings
unit for continued processing, in accordance with the following ORDER.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Washington,
D.C. Field Office for further processing consistent with the foregoing
decision. The agency is directed to submit a copy of the complaint
file to the EEOC Hearings Unit within fifteen (15) calendar days
of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
November 17, 2000
__________________
Date
MEMORANDUM
TO: Hearings Unit, Washington, D.C. Field Office
FROM: Carlton M. Hadden, Director
DATE:
RE: Daniel F. Fitzgerald v. Department of Defense, EEOC Appeal
No. 01995303
Enclosed is a DECISION requiring the above referenced complaint be
assigned to an Administrative Judge. We request that the Administrative
Judge notify the Compliance Division at the Office of Federal Operations
after a decision has been issued. If there are any questions concerning
the further processing of this complaint, please contact Robert Barnhart,
Acting Director of Compliance and Control, at (202) 663-4525.
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2On a prior appeal, complaint no. FY94-26 was remanded to the agency for
clarification of the claims raised. The record forwarded on this appeal
does not reveal whether or not the claims were further amended on remand.