05A30914_r
03-01-2004
Robert D. Oest, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Robert D. Oest v. Department of Justice
05A30914
March 1, 2004
.
Robert D. Oest,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Request No. 05A30914
Appeal No. 01A22978
Agency No. P-2001-0142
Hearing No. 320-A2-8072X
GRANTING OF REQUEST FOR RECONSIDERATION
Robert D. Oest (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Robert D. Oest v. Department of Justice, EEOC Appeal
No. 01A22978 (May 22, 2003). EEOC Regulations provide that the Commission
may, in its discretion, reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
For the reasons set forth herein, complainant's request is GRANTED.
The record indicates that in June 1998, complainant requested twelve weeks
of unpaid leave for the birth of his son, pursuant to the Family Medical
Leave Act (FMLA) and the request was denied. In denying the request,
complainant's supervisor stated that complainant was not entitled to
leave under the FMLA. Subsequently, after the birth of complainant's
second child in March 2000, complainant again requested FMLA leave.
Complainant's second request for twelve weeks of unpaid leave was
approved effective May 15, 2000. However, the record indicates that
on June 18, 2000, while complainant was on FMLA leave, he was demoted
from the position of Materials Handler Supervisor, WS-6907-03, to
Correctional Officer, GS-0007-07 in the Correctional Services Department.
Following notification of the demotion, complainant sent letters to the
Office of Special Counsel on June 22 and 28, 2000, alleging that the
agency discriminated against him in violation of the FMLA. Finally,
on August 4, 2000, complainant resigned his position with the agency.
On February 16, 2001, complainant contacted an EEO Counselor regarding
the denial of leave, demotion, and resignation. When asked about the
timing of his contact, complainant indicated that he had requested some
clarification regarding a personnel action and only received a response
from the Office of Personnel Management (OPM) on February 7, 2001, after
which he initiated his EEO contact. It appears that the agency found
complainant's explanation adequate to justify the date of contact and
continued with the informal processing of his case.
On April 10, 2001, complainant filed the instant formal complaint alleging
that he was subjected to discrimination on the bases of sex (male) and in
reprisal for prior activity, culminating in his separation from agency
employment on August 4, 2000. Regarding his separation, complainant
stated that in August 2000, he resigned after he had been assigned to a
"known hostile environment, and that the agency "clearly offered [him]
little choice considering the threats that [he] had received.... "
The record indicates that the agency did not complete its investigation
of the complaint at the end of the 180-day period pursuant to 29 C.F.R. �
1614.108 (f). Thereafter, complainant requested a hearing before an
EEOC Administrative Judge (AJ).
On February 21, 2002, the AJ issued an Order, wherein the AJ determined
that because complainant alleged constructive discharge, his complaint
was a mixed case complaint, and that the Commission had no authority to
conduct a hearing on mixed case matters. The AJ, however, did not remand
the complaint to the agency for processing as a mixed case complaint.
Instead, the AJ cited 29 C.F.R. � 1614.107(a)(4), and 29 C.F.R. �
1614.109, and dismissed the instant complaint. In its April 15, 2002
final order, the agency adopted the AJ's order dismissing the captioned
complaint, and provided complainant with appeal rights to the Commission
if he disagreed with the decision of the AJ. The agency indicated that
if complainant agreed with the AJ's decision, the agency would "issue
a decision on [complainant's] case."
On the same date that complainant filed his appeal with the Commission
from the agency's dismissal, May 6, 2002, he also filed an appeal
on the merits of his case with the Merit Systems Protection Board.
Complainant did not notify the Commission of the MSPB appeal. In the
previous decision, the Commission determined that the instant complaint
was improperly dismissed pursuant to 29 C.F.R. �1614.107(a)(4), because
there was no evidence to show that complainant filed an appeal with
the MSPB regarding his constructive discharge claim. Additionally,
the Commission found that the order issued by the agency reflects
that it adopted the AJ's decision to dismiss the complaint. However,
the agency's final order also indicated that it would issue a decision
on the merits of the presumably dismissed complaint. The Commission
determined that a review of the record failed to disclose any evidence
to show that the agency issued a decision on the merits regarding
the captioned complaint. The Commission determined that rather than
dismiss the complaint, the hearing should have been cancelled, and the
case remanded to the agency for processing as a mixed case complaint,
with explicit instructions to issue a decision on the merits of the
complaint, with appeal rights to the MSPB, and not the Commission, as
set forth in 29 C.F.R. � 1614.302(d)(3). Thereafter, the Commission
vacated the agency's final action and remanded the case to the agency
for further processing. Robert D. Oest v. Department of Justice, EEOC
Appeal No. 01A22978 (May 22, 2003).
In his request for reconsideration, complainant contends that on March
1, 2003, the MSPB issued a decision dismissing an appeal he had filed
with the MSPB, for lack of jurisdiction. In support of his argument,
complainant submits a copy of the MSPB's March 1, 2003 Initial Decision
(Docket No. DE-1221-02-0269-W-1).
In response to the request for reconsideration, the agency argues that
complainant demonstrated a clear intention to pursue his rights with the
MSPB, and noted that complainant filed an appeal from the MSPB's decision
of March 1, 2003, regarding jurisdiction, with the Federal Circuit Court
of Appeals. In support of this argument, the agency submits a copy of
a Petition for Review filed by complainant, in the United States Court
of Appeals for the Federal Circuit. A decision has not yet been issued
by the Court.
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 elect to 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. �
1301.151, but not both. See 29 C.F.R. � 1614.302(b). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. USPS, EEOC Appeal No. 01981358 (December 23, 1998).
Here, the record reflects that the MSPB issued a decision, dismissing
complainant's appeal on the grounds that it lacked jurisdiction.
The Commission determines that given this circumstance, complainant's
complaint should appropriately be viewed and processed as a non-mixed
case. See Eldridge v. Department of Veterans Affairs, EEOC Petition
No. 03A10086 (August 30, 2001).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to GRANT the request. The decision of the
Commission in Appeal No. 01A22978 is hereby REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the Order set forth herein. There is no further right of
administrative appeal on the decision of the Commission on this request
to reconsider.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer
at the address set forth below that the request and complaint file have
been transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 1, 2004
__________________
Date