Edwin James, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 5, 2011
0120112993 (E.E.O.C. Dec. 5, 2011)

0120112993

12-05-2011

Edwin James, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Edwin James,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120112993

Hearing No. 550-2011-00261X

Agency No. ARHQMSDDC10JUN02880

DISMISSAL OF APPEAL

On May 18, 2011, Complainant, by and through counsel, filed an appeal with this Commission concerning 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., 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.

BACKGROUND

On August 13, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (100% Disabled Veteran-Exposure to Agent Orange, Hearing Impaired, Post Traumatic Stress Disorder (PTSD), Aortic Stenosis, Heart Murmur, Diabetes, High Blood Pressure), age (over 40), and in reprisal for prior protected EEO activity when:

1. Since October 2008 Person A has:

a. Stated to other officers that Complainant was guilty of a crime.

b. Refused to issue Complainant the appropriate ID cards.

c. Denied Complainant access to the armory, although Complainant is required to account for weapons and ammunition at the beginning of his shift.

d. Denied Complainant access to supervisory meetings, leaving him to receive the details of the meetings from a subordinate Sergeant.

2. On June 28, 2010, Person A told others around Military Ocean Terminal Concord (MOTCO) and the Contra Costa County Sherriff's Office that he was going to get rid of all the "old people".

3. On June 28, 2010, Person A placed Complainant on patrol, which is not a part of his regular duties, and which denied Complainant the ability to do his job as a supervisor.

4. On June 28, 2010, Person A issued Complainant a Notice of Proposed Removal.

5. On June 25, 2010, Person A ordered Complainant to take the annual physical twice within a six (6) month period, after he had already taken the physical on January 12, 2010.

6. Since August 4, 2010, the Agency has not responded to Complainant's request to receive all supporting documentation regarding his proposed removal.

On January 7, 2011, the Agency dismissed issue (1) pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency accepted the remaining issues in the complaint. Subsequently, Complainant requested a hearing on his complaint before an EEOC Administrative Judge (AJ).

On April 27, 2011, the AJ issued an Order noting that one of the discriminatory acts in Complainant's case concerns the issuance of a Notice of Proposed Removal. The AJ stated that on April 19, 2011, Complainant received a Decision on the removal action which implemented the proposal to remove Complainant from employment. The AJ stated that she did not have jurisdiction over the removal claim. The AJ noted that the Merit Systems Protection Board (MSPB) does not have jurisdiction over a proposed removal claim, particularly when the proposed removal was issued a matter of months before the appealable removal was effectuated. The AJ decided in the interest of judicial economy and to avoid inconsistent results, Complainant's EEO case, which included all of the claims accepted for investigation, would be placed in abeyance and all proceedings would be stayed until the administrative proceedings on the removal action are completed or the parties have otherwise resolved the matter.

Complainant subsequently filed the present appeal. On appeal, Complainant requested the Commission overturn the AJ's decision to hold his case in abeyance. Complainant stated that the proposed removal and other issues in his Complainant are separate actions from the removal and are not within the MSPB's jurisdiction.

ANALYSIS

EEOC Regulations provide complainants can file an appeal with the Commission from a specific agency final decision or an agency's dismissal of all or a portion of a complaint. See 29 C.F.R. � 1614.401(a). In the present case, the Agency has not issued a final action on Complainant's complaint. The AJ ordered the Agency to hold Complainant's complaint in abeyance pending completion of the administrative proceedings surrounding the removal. In the present case, we find Complainant's appeal to be an interlocutory appeal of the AJ's order which is not permissible under EEOC regulations or case law.

CONCLUSION

Accordingly, Complainant's appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

12/5/11

__________________

Date

2

01-2011-2993

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120112993