Dorvin D Hagen, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01a44969 (E.E.O.C. Nov. 22, 2004)

01a44969

11-22-2004

Dorvin D Hagen, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Dorvin D Hagen v. Department of Transportation

01A44969

November 22, 2004

Dorvin D Hagen,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A44969

Agency No. 3-02-3071

DECISION

Upon review, the Commission dismisses complainant's complaint pursuant

to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and

improper amendment of the complaint under 29 C.F.R. � 1614.106(d).

I. BACKGROUND

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of sex (male), disability, age (59,

D.O.B. 07/31/42), and reprisal for prior EEO activity when:

on August 16, 2001, he was reassigned from his job;

effective December 2, 2001, he was assigned to another unit;

on March 11, 2002, he was not given information used to reassign him;

on June 19, 2002, he received a Letter of Reprimand; and

on or about February 22, 2004, he was constructively discharged.

Complainant, formerly a Supervisory Aviation Safety Inspector at

the Federal Aviation Administration, made initial contact with an EEO

counselor on June 23, 2002 and subsequently filed his formal complaint on

July 26, 2002. On August 13, 2002, the agency dismissed his complaint

finding that complainant had raised identical claims in a prior grievance

procedure. On January 16, 2003, the Commission reversed the agency's

dismissal and reinstated four of the allegations, allegations (1), (2),

(3), and (4) above, finding that the relevant grievance procedure did

not preclude complainant from electing to file an EEO complaint as well.

Hagen v. Department of Transportation, EEOC Appeal No. 01A24970 (January

16, 2003). Complainant requested a hearing on July 15, 2003.

Prior to the hearing, complainant moved to amend his complaint to include

an allegation of constructive discharge. The Administrative Judge

(AJ) granted his motion, finding that the allegation of constructive

discharge was like or related to complainant's previous allegations

because the disability that spurned his discharge was caused by the trauma

he experienced from the incidents described in the other allegations.

The AJ then found that complainant's constructive discharge allegation was

an issue within the jurisdiction of the Merit Systems Protection Board

(MSPB) and made the complaint a mixed case complaint under 29 C.F.R. �

1614.302(a).<1> The AJ, therefore, remanded the case to the agency for

a final decision without a hearing pursuant to 29 C.F.R. � 1614.302(d)

and Equal Employment Opportunity Management Directive for 29 C.F.R. Part

1614 (EEO MD-110), 4-1 and 4-6 (November 9, 1999).

The agency issued its final decision (FAD) on June 17, 2004. The FAD

dismissed allegations (1) through (4) for untimely EEO contact.

The agency dismissed allegation (5) finding that the complainant's

motion to amend should not have been granted because allegation (5)

was not like or related to allegations (1) through (4).

Complainant filed appeals on July 16, 2004 with the Commission and

the MSPB. In his writing to the Commission, complainant summarized

the procedural history of the case and stated his desire to pursue his

appeal rights with the MSPB. He stated an intention to withdraw his

appeal before the Commission if and when he was permitted to proceed

with his MSPB appeal.

The agency makes no new arguments on appeal.

On October 12, 2004 the MSPB issued an initial decision on complainant's

appeal, dismissing for lack of jurisdiction because complainant failed

to set forth a non-frivolous allegation of constructive discharge.

The initial decision became final on November 16, 2004.

II. ANALYSIS

Because the MSPB dismissed complainant's constructive discharge allegation

for lack of jurisdiction, his complaint is not a mixed case complaint.

The instant complaint should, therefore, be processed as a non-mixed case

EEO complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Pursuant to 29 C.F.R. �

1614.405(a), we can assume jurisdiction over the procedural issues raised

in the FAD.<2>

We dismiss allegations (1), (2), (3), and (4) for untimely EEO contact.

Complainant made initial EEO counselor contact on June 23, 2002. Initial

EEO contact must occur within 45 days of the alleged discriminatory

incident(s). 29 C.F.R. � 1614.105(a)(1). The most recent of the

allegations, allegation (4), occurred April 19, 2002, which is beyond

the 45 day limit.<3> On appeal, complainant has presented no persuasive

arguments or evidence warranting an extension of the time limit for

initiating EEO Counselor contact. Allegations (1) through (4) are,

therefore, dismissed for untimely EEO contact.

We also dismiss allegation (5) finding that the AJ erred in allowing

complainant to amend his complaint to add allegation (5). A complainant

can amend his original complaint if the new allegation is like or related

to the original allegations. 29 C.F.R. � 1614.106(d). In determining

if a later allegation is "like or related" to the original complaint, the

question arises as to whether the later allegation adds to or clarifies

the original complaint and could have reasonably been expected to grow

out of the original complaint during the investigation. Scher v. USPS,

EEOC Request No. 05940702 (May 30, 1995) (citing Calhoun v. USPS,

EEOC Request No. 05891068 (March 8, 1990) and Webber v. Department of

Health and Human Services, EEOC Appeal No. 01900902 (February 28, 1990)).

In Scher, the Commission found that complainant's new allegation was not

like or related to his original claim of constructive discharge because

the complainant did not decide to resign based on the acts alleged in

the new allegation. Scher, supra. The Commission also found that the

new allegation did not clarify issues in the original complaint. Id.

Complainant's motion to amend argued that allegation (5), constructive

discharge, is like or related to the original allegations, (1) through

(4) above, because the original claims caused him to suffer depression

and anxiety which led to his constructive discharge. Due to his

depression and anxiety he was unable to work. His inability to work

over a two year period predicated his proposed removal by the agency.

Complainant resigned in response to his proposed removal. Complainant

argued that allegations (1) through (4) were, therefore, the �but for�

cause of allegation (5). The AJ found that this �but for� causation was

sufficient to make allegation (5) like or related to the allegations in

the original complaint.

We reverse the AJ's finding. Similar to the facts in Scher, allegation

(5) is not like or related to complainant's original allegations because

he did not decide to resign as a result of allegations (1) through (4).

He was prompted to resign in response to the agency's decision to remove

him from his position. While allegations (1) through (4) were �but for�

causes of allegation (5), the causal connection is highly attenuated.

Allegations (1) through (4) occurred over two years prior to allegation

(5) and without the agency's decision to remove complainant he would

not have opted to resign. We, therefore, dismiss allegation (5) as

improperly added to the original complaint.<4>

III. CONCLUSION

The instant complaint is dismissed for the reasons stated above.

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

___November 22, 2004_______________

Date

1The case file contains an MSPB decision

and final order from a case decided on December 18, 2001. The decision

concerns allegations entirely unrelated to those made here. The decision

has no bearing on this case.

2If complainant's allegations were to survive procedural dismissal,

the AJ would have jurisdiction to address the merits of the complaint,

because complainant requested a hearing prior to the AJ's erroneous

dismissal of the complaint as a mixed case.

3Allegation (4) as framed by the agency states that it occurred on June

19, 2002. The record reveals, however, that the agency's letter of

reprimand was received by complainant on April 19, 2002.

4 Complainant may seek counseling on allegation (5) as a complaint

on its own. The date of his motion to amend the instant complaint to

include allegation (5), March 23, 2004, is the date of his initial EEO

contact for the purpose of addressing timeliness.