0120130022
01-31-2013
Jerre L. Brumbelow, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (National Park Service), Agency.
Jerre L. Brumbelow,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120130022
Hearing No. 410-2009-00047X
Agency No. NPS-08-0114
DISMISSAL OF APPEAL
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the August 27, 2012 final Agency decision (FAD) dismissing 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Superintendent at the Agency's Cumberland Island National Seashore in St. Marys, Georgia.
On January 23, 2008, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race (White) and age (59) when on October 22, 2007, he was detailed/reassigned to the position of Regional Architect in the Southeast Regional Office pending an investigation. The investigation was based on allegations of misconduct against him.
While the Agency was investigating his EEO complaint, Complainant was removed based upon the allegations of misconduct. In July 2008 he appealed his removal to the Merit Systems Protection Board (MSPB or Board). In its April 2009 initial decision the MSPB upheld the removal and found that to the extent Complainant did not withdraw his allegations of race and age discrimination by presenting virtually no evidence on them, he failed to prove discrimination. In September 2009, the Board denied Complainant's petition to review the initial decision, and it became final.
In October 2008, Complainant requested a hearing before an EEOC Administrative Judge (AJ) on his detail/reassignment complaint. In April 2009, through his attorney, he asked the EEOC AJ to dismiss his request for a hearing without prejudice because he intended to take the "EEO issue before you" and combine it with the MSPB issues and go to federal court. In April 2009, the AJ dismissed the hearing request with prejudice.
On October 30, 2009, Complainant filed a civil action (identified as Civil Action No. 2:09cv00165) in the United States District Court for the Southern District of Georgia. The claim raised therein is the same as that raised in the instant complaint, in addition to his termination claim.
On December 2, 2010, the Court made a decision, as amended on June 16, 2011, finding no discrimination on the reassignment claim and dismissing the termination claim for lack of jurisdiction.1
ANALYSIS AND FINDINGS
The complaint before us regards a detail/reassignment. It is dismissed because Complainant filed a civil action on the matter and the United States District Court dismissed the civil action on the grounds that Complainant did not prove discrimination. 29 C.F.R. � 1614.409.
On appeal, Complainant argues that he filed three amendments to his complaint in March and August 2008 alleging that the Agency discriminated against him based on reprisal when it proposed his removal, terminated him, and refused to process his retirement. He argues that the Agency improperly did not acknowledge or investigate these amendments.
On December 4, 2008, the Agency transmitted a copy of the Report of Investigation to Complainant's attorney, after Complainant requested a hearing.
Thereafter, on December 16, 2008, the EEOC AJ issued an Acknowledgment & Order to the parties instructing in part that that the Complainant may amend his complaint to add claims that are like and related to the original complaint, and to do so must file a motion with the AJ.
After the AJ dismissed Complainant's request for a hearing in April 2009, in July 2009 Complainant asked the AJ to reinstate his request for a hearing and added that the Agency did not address his claim of reprisal when he was removed and delayed providing him retirement benefits. In July 2009 the AJ denied Complainant's request to reinstate his hearing request.
In August 2009, Complainant filed a motion with the AJ, arguing in part that on August 15, 2008, he sent an email to the EEO Program Manager in the National Park Service with two separate charges of reprisal, and the Agency did not respond to or investigate the charges. Complainant attached a copy of the email. Therein, he wrote that he was amending his EEO complaint to allege that he was discriminated against based on reprisal when he was terminated on July 11, 2008, and the Agency refused to process his retirement request on July 29, 2008.
In April 2010, the AJ wrote Complainant that his request for a hearing was dismissed with prejudice in April 2009, and the AJ no longer had jurisdiction over the complaint.
Complainant has submitted evidence that prior his requesting a hearing in October 2008 and the completion in December 2008 of the Agency investigation on his EEO complaint on August 15, 2008, he amended his complaint to include claims of reprisal discrimination when he was removed and his retirement request was not processed by the Agency. The Agency failed to acknowledge or process his amendment under 29 C.F.R. � 1614.106(d) & (e).
As an initial matter, we find that Complainant's amendment raising reprisal discrimination regarding his removal (and for that matter, the related proposed removal), is subject to dismissal because he filed an appeal with the MSPB on the removal, and the MSPB decided the matter on the merits. Further, when Complainant asked the AJ to dismiss his hearing request, he indicated that there was only one discrimination issue before the AJ, and he did not file a motion to amend his complaint with the AJ until after his hearing request had already been dismissed. Given the wording in the AJ's acknowledgment order we find Complainant did not timely raise his amendment requests with the AJ. Accordingly, the Agency at this point need not process them.
Complainant's appeal is hereby dismissed. See 29 C.F.R. � 1614.409.
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
January 31, 2013
__________________
Date
1 The Court dismissed the termination claim for lack of jurisdiction because while Complainant raised discrimination in his appeal with the MSPB, he was deemed to have abandoned the claim there.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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