0120093032
12-03-2009
James K. Sabourin, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
James K. Sabourin,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120093032
Hearing No. 560-2008-00119X
Agency No. RD200700196
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 17, 2009, dismissing his complaint 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.
In his complaint, complainant alleged that he was subjected to harassment
on the bases of disability (diabetes), age (October 28, 1948), and
reprisal for prior protected EEO activity. In support of his claim
of harassment, complainant detailed a variety of events occurring from
October 20, 2006 through December 21, 2006. Complainant indicated that
his supervisor created a hostile work environment by, among other things,
threatening him with discipline and termination.
The complaint was accepted for investigation, which was conducted in
June 2007. The record indicates that the investigator provided the agency
with the report of investigation on June 30, 2007. However, the agency
did not issue the investigation to complainant until January 17, 2008.
Complainant requested a hearing before an EEOC Administrative Judge
(AJ).
Prior to the hearing, complainant retired from the agency on October
27, 2008. In a pre-hearing submission, complainant indicated that his
retirement in October 2008 was due to the alleged harassment. As such,
complainant asserted that he was constructively discharged because
of discriminatory harassment. On July 25, 2008, the agency filed a
Motion to Dismiss the complaint of constructive discharge indicating
that it constitutes a mixed case complaint which should be reviewed
by the Merit Systems Protection Board (MSPB), not EEOC. On August 26,
2008, the EEOC AJ remanded the constructive discharge claim back to the
agency for processing as a mixed case complaint, including the issuance
of a final decision with appeal rights to the MSPB, not EEOC. The EEOC
AJ decided to hold the remaining claim of harassment in abeyance pending
the MSPB's ruling on the constructive discharge claim.
On June 17, 2009, the agency issued the instant decision dismissing the
complaint of constructive discharge. The agency argued that complainant
failed to raise this matter with an EEO counselor as required by 29
C.F.R. � 1614.107(a)(2). The agency further noted that the claim of
constructive discharge was not "like or related" to the matter that
was brought to the attention of the EEO counselor. Further, the agency
noted that complainant did not request for an amendment to his formal
complaint either to the agency during the investigation of his complaint
or with the EEOC AJ. Therefore, the agency believed that the claim of
constructive discharge should be dismissed. This appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990).
Here, in his formal complaint, complainant alleged that he was subjected
to a hostile work environment in which his supervisor threatened him
with disciplinary action, termination, and even the penalty of jail,
for filing a complaint against him. We find that complainant's claim
of constructive discharge is clearly like or related to his claim of a
hostile work environment. As such, we find the agency's dismissal of
his claim of constructive discharge was not appropriate.
Accordingly, we REVERSE the agency's dismissal of the constructive
discharge claim and REMAND the claim for further processing in accordance
with the ORDER below.
ORDER
The agency is ordered to process the remanded claim of constructive
discharge as a mixed case complaint in accordance with 29 C.F.R. �
1614.302. The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the
date this decision becomes final. The claim of constructive discharge
was not investigated pursuant to complainant's claim of harassment.
As such, the agency shall conduct an investigation and issue complainant
a copy of the investigative file and also shall notify complainant of
the appropriate rights within one hundred twenty (120) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. At the conclusion of the investigation,
the agency shall provide complainant with the investigative file and
notify him that it shall issue a final decision within forty-five (45)
calendar days without a hearing. At the time that the agency issues its
final decision on the mixed case complaint, the agency shall advise the
complainant of the right to appeal the matter to the MSPB (not EEOC)
within thirty (30) calendar days of receipt and of the rights to file
a civil action as provided at 29 C.F.R. � 1614.310(a).
A copy of the agency's letter of acknowledgment to complainant; a copy of
the notice that transmits the investigative file and notice of rights;
and a copy of the agency's final decision with appeal rights to MSPB
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
December 3, 2009
__________________
Date
2
0120093032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093032