01A30052
07-26-2004
Edward J. Baltzell, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Edward J. Baltzell v. Department of Justice
01A30052
July 26, 2004
.
Edward J. Baltzell,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A30052
Agency No. I-01-W018
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 9, 2002, regarding his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to discrimination and unlawful harassment on the bases of
race (Caucasian), sex (male), disability (Attention Deficit Disorder),
and reprisal for prior EEO activity when:
Between 1995 and January 2001, management officials at the Lost Angeles
Asylum Office failed to accommodate his disability and subjected him
to abusive or derogatory comments;
On June 16, 2000, the Director issued complainant a proposed suspension
from duty for ten calendar days;
On July 26, 2000, complainant was issued an annual performance rating of
"fully successful" and complainant believed his performance merited a
higher rating;
On August 3, 2000, complainant was advised that he was going to be
transferred;
On August 3, 2000, a Supervisory Asylum Officer physically and verbally
assaulted complainant;
Between August 3, 2000 and December 11, 2000, complainant was
constructively suspended from duty;
Subsequent to October 2000, management officials processed his Office
of Workers' Compensation Programs claim of injury in a manner that was
not consistent with federal laws and regulation;
As of January 2001, the Director failed to provide complainant with a
performance rating for his role as EEO Special Emphasis Program Manager;
In January 2001, complainant was forced to resign. He claims that he was
constructively discharged from his position as an Asylum Officer, GS-12.
The matter was investigated. Following the investigation, the agency
issued a final decision finding no discrimination. The agency's decision
gave complainant appeal rights to the Merit Systems Protection Board
(MSPB), not the EEOC. Complainant timely filed an appeal with the MSPB
and the Commission. On October 29, 2003, the MSPB dismissed without
prejudice pursuant to complainant's request for an extension of time in
order to seek a representative. Complainant had until January 5, 2003,
to re-file with the MSPB. Complainant has not re-filed with the Board.
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 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).
As a general matter, if the complainant is dissatisfied with the agency's
FAD on the mixed case complaint, complainant may appeal the matter to
the MSPB, not the Commission, within thirty (30) days of receipt of the
agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii). At the time
that the agency issues its final decision on a mixed case complaint, the
agency shall advise the complainant of the right to appeal the matter
to the MSPB and of the right to file a civil action as provided at 29
C.F.R. � 1614.310(a). Individuals who have received a final decision
from the MSPB on the appeal of a final decision on a mixed case complaint
may petition the Commission to consider the MSPB's decision with regard
to the issues of discrimination. 29 C.F.R. � 1614.303.
The FAD indicated that complainant's complaint was within the jurisdiction
of the MSPB and provides complainant with the right to appeal the matter
to the MSPB, not the Commission. Further, complainant appealed the matter
to the MSPB. Upon review, we find that only two issues raised in his
complaint were under the Board's jurisdiction, namely the constructive
suspension alleged in claim (6) and the constructive discharge alleged
in claim (9). Accordingly, under the Commission's regulations, we
shall not consider complainant's appeal of claims (6) and (9).
As to the remaining claims (1)-(5) and (7)-(8), we find that those issues
are not considered �mixed.� Upon review, we find that the agency did
not provide complainant with his right to request a hearing before an
EEOC Administrative Judge. Therefore, we vacate the agency's FAD as
to these issues and remand the matter back to the agency for further
processing of claims (1)-(5) and (7)-(8).
CONCLUSION
Therefore, after a careful review of the record, we dismiss claims (6)
and (9) and vacate the FAD as to claims (1)-(5) and (7)-(8) and remand
for further processing.
ORDER
The agency is required to process the remanded claims of discrimination
pursuant to 29 C.F.R. � 1614.109 et seq. The agency shall acknowledge to
the complainant that it has received the remanded matter within thirty
(30) days of the date this decision becomes final. The agency shall
issue to the complainant a copy of the investigative file and also
shall notify the complainant of the right to a hearing before an EEOC
Administrative Judge within forty-five (45) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of the complainant's request.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 26, 2004
__________________
Date