01A34928_r
07-29-2004
Robert Sherrell, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Robert Sherrell v. Department of the Navy
01A34928
July 29, 2004
.
Robert Sherrell,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34928
Agency No. DON 03-61449-006
DECISION
Complainant filed an appeal with this Commission from the July 18,
2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(4) on the grounds that complainant had filed an appeal with
the Merit Systems Protection Board (MSPB).
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African American), color (black),
and reprisal for prior EEO activity when on January 14, 2003, the
Director of the Quality of Life Department upheld the denial of his
within-grade increase.
In dismissing the complaint, the agency stated that the denial of
complainant's within-grade increase was inextricably intertwined with
the complainant's MSPB appeal. The agency noted that complainant filed
an appeal with the MSPB regarding his January 14, 2003 removal for
unacceptable performance and that complainant's removal and within-grade
increase were predicated on his failure to raise his performance to the
acceptable level during a 90-day performance improvement period.
In the MSPB appeal, complainant alleged that the agency had removed him
for unacceptable performance. The record before the MSPB also reveals
that because complainant was allegedly deficient in his performance,
he was placed on a performance improvement plan (PIP). The MSPB
Administrative Judge (AJ) issued an Initial Decision on January 30,
2004. The MSPB AJ's decision reflects that complainant's performance
was considered in determining whether his performance-based removal was
proper. The MSPB AJ specifically found that complainant's performance
was unacceptable following his being given a reasonable period to improve.
The Commission has held that allegations of discrimination which are
inextricably intertwined with an action that is appealable to the
MSPB should be raised in that forum. See Bivens v. Department of the
Navy, EEOC Request No. 05890476 (April 3, 1990). Upon review, the
Commission finds that the agency's decision was proper. The denial of
the within-grade increase is inextricably intertwined with the issue of
complainant's allegedly deficient performance which led to his removal
and which was appealed to the MSPB. See Gandhi v. Department of the Army,
EEOC Request No. 05A11004 (April 19, 2002).
The agency's decision dismissing the complaint is AFFIRMED.
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 (S0900)
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 (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 29, 2004
__________________
Date