0120081851
09-04-2008
Sheree M. Finkes, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Sheree M. Finkes,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120081851
Agency No. P20050240
Hearing No. 550-2007-00060X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 14, 2008, dismissing her 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. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of race (Caucasian), sex (female), disability (back injury, shoulder
injury, anxiety attacks), age (45 and 46 years old at the time of the
alleged incidents), and reprisal for prior protected EEO activity under
an EEO statute that was unspecified in the record when:
1. Complainant was harassed by her supervisor; and
2. Complainant was removed from the agency.
The agency dismissed the claims for stating the same claim as a
previously-filed claim filed by complainant before the Merit Systems
Protection Board (MSPB).
Background
On June 20, 2005, complainant filed a Formal Complaint of discrimination.
In her complaint, complainant states the following:
This is the second time I have filed sexual harassment from the same
person with no corrective action taken. I tried to tell my supervisor
[supervisor's name] the last time it happened but he said 'that sounds
like a threat.' He did not want to hear my complaint. I was also not
allowed to work comp time while others told me they worked all they
wanted. Because I have been injured I have been retaliated against.
See attached. I tried twice in the past with no corrective action taken.
I was hospitalized with a bowel obstruction and pancreitis. Doctors told
me I could die. The [agency] had the administration write me AWOL
and took my pay even though I was hospitalized and could have died.
They were never held accountable.
In addition, complainant wrote "see attachment." The record also contains
a document from complainant dated May 7, 2005. While it is not clear
whether this document is the attachment referred to by complainant
in her Formal Complaint, we note that the document states "Subject:
retaliation, sex discrimination, race discrimination, age discrimination,
physical disability and mental disability and the American Disability Act.
This is a Formal Complaint against [the agency, the Warden and two named
supervisors]." The document alleges numerous instances of harassment,
including allegations that complainant was not allowed to eat at her
desk, that the Health Services Administrator (RMO1: Hispanic, female no
disability, 48-49 years old at the time of the actions complained of)
spoke to her in a disrespectful manner, that the Assistant Health Services
Administrator (RMO2: Caucasian, female, no disability, 49-50 years old at
the time of the actions complained of) altered complainant's evaluation
after complainant had signed it, as well as additional allegations of
harassment. We note that neither the Formal Complaint nor the attachment
include any reference to complainant being removed from the agency.
However, it further appears that complainant included a copy of a June
17, 2005 Removal Letter as an additional attachment. The letter states
that complainant was being removed "for physical/medical inability to
perform the duties of your position."
On July 16, 2005, complainant filed an appeal with the MSPB. Complainant
stated that she was appealing the following action "Medical removal
action under 5 C.F.R. Part 752." In Box 32 of the MSPB Appeal Form,
complainant wrote "mixed case appeal on the basis of sex, disability
(perceived or real) reprisal, discriminatory motivation in the [illegible]
of disparate treatment and harassment. Failure to accommodate qualified
individual."
On November 29, 2005, the agency accepted the following claims for
investigation regarding complainant's EEO complaint:
You were removed1 from Federal service for "Physical/Medical Inability to
Perform the Duties of your Position" on June 17, 2005; and in March and
April 2005, you were subjected to a hostile work environment and disparate
treatment in the form of denial of compensatory time, an AWOL charge,
you were barred from eating or drinking at your desk, your supervisors
talked to you in a disrespectful manner, your supervisor added comment
to your evaluation after you had signed it, your request for a shift
change was denied, and you were ordered to copy medical records as part
of your job duties.
However, on December 2, 2005, an EEOC Administrative (AJ1) issued a
Decision certifying a class in the complaint of Dennis Turner v. Alberto
Gonzales, Attorney General of the United States, Department of Justice,
(Federal Bureau of Prisons), EEOC Nos. 320-2005-00046X, 320-2005-0033X,
which included claims of harassment based on reprisal. Because of her
allegations of harassment based on reprisal, complainant was deemed to
be part of the class in the Turner class action and was sent written
notification of AJ1's abeyance order on January 5, 2006, thus halting
the investigation.
On February 6, 2006, the MSPB AJ issued an Initial Decision affirming
the removal action and finding no discrimination. Complainant did not
appeal the Initial Decision.
On November 3, 2006, another EEOC AJ (AJ2) directed the agency to produce
the complaint file. On December 20, 2006, the agency moved to have the
complaint remanded for a Final Agency Decision (FAD). In a decision dated
January 5, 2007, AJ2 granted the agency's motion, noting the possible
inclusion of complainant's complaint with the class in the Turner class
action. AJ2, directed the agency to determine whether "the March and
April 2005 hostile work environment and disparate treatment claims are
inextricably linked to the removal" action. AJ2 further directed that,
if the agency determined that the March and April hostile work environment
and disparate treatment claims were inextricably linked, "the entire
complaint should be processed as a mixed case complaint." However, if
the agency determined that these claims were not "inextricably linked"
to the removal action, AJ2, ordered the agency to process the March and
April claims in two parts as follows: "the reprisal allegations will
be subsumed into the class action . . . [and] the race, sex (including
sexual harassment) age and disability allegations will be processed as
a (non-mixed case) EEO complaint and complainant can choose a hearing
before an EEOC Administrative Judge after the agency conducts and
expedited investigation."
In its February 14, 2008 FAD, the agency dismissed the complaint on the
grounds that the issues had been previously addressed by the MSPB in its
February 6, 2006 Decision. This appeal followed. On appeal, complainant
maintains that the issue of harassment had never been addressed.
The agency maintains that the issue of harassment was raised during
the MSPB hearing and is inextricably entwined with the removal issue,
even though the agency concedes that the MSPB AJ did not address the
harassment issue in the MSPB Initial Decision.
Analysis and Findings
An aggrieved person may 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. � 1201.151, but not both. See 29 C.F.R. � 1614.302(b).
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency
shall dismiss a complaint where the complainant has raised the matter
in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that the
complainant has elected to pursue the non-EEO process.
Following a review of the record, we find that the agency has failed
to meet its burden of establishing that the removal claim and the
harassment claim were inextricably intertwined. The agency on appeal
cites a number of case to support its argument, but the cases cited by
the agency involve situations were a complainant is complaining about a
disciplinary action, followed by a removal action that is based, in whole
or on part, on the disputed disciplinary action. In the instant case,
however, while the removal followed the harassment, complainant has not
claimed that the harassment culminated in the removal. Furthermore a
review of the Report of Investigation (ROI) indicates that complainant
is alleging that the removal was for medical reasons and that the agency
denied her a reasonable accommodation, while her main argument about
the harassment was that she was being retaliated against for filing an
earlier sexual harassment complaint. ROI, Exhibit 4, pp. 4, 5.
The agency further argues on appeal that complainant sought to raise the
harassment issue before the MSPB and has provided copies of excerpts of
the MSPB deposition and hearing transcripts where the word "harassment"
is used. Such evidence, however, is unpersuasive. We note initially
that it is unclear whether complainant was represented by legal counsel
on these occasions. Furthermore, the transcripts provided by the agency
are incomplete but in at least two of the instances relied on the
by agency, complainant appears to be mentioning harassment not in an
effort to have that matter adjudicated before the MSPB on the merits,
but solely in an effort to establish that agency officials were aware
of her prior EEO activity and hence knowingly retaliated against her.
See Agency Brief, Exhibits 5 & 7. In addition, the other sporadic
references to "harassment" or to the individual incidents that constitute
her harassment claim, appear to have been raised merely in an effort
to portray agency officials in a bad light, not to have the issues
adjudicated on the merits. See id., Exhibit 6.
Finally, we note that the MSPB generally does not have jurisdiction
to address most claims of harassment that do not lead to a removal or
a suspension. We note that the MSPB AJ did not address harassment in his
Initial Decision. Assuming arguendo that complainant raised the harassment
issue before the MSPB, we interpret the AJ's decision as dismissing the
harassment claim on jurisdictional grounds. Where the MSPB dismisses a
mixed case appeal on jurisdictional grounds, a complainant is entitled
to pursue the EEO process. See 29 C.F.R. � 1614.302(2)(b).
For the above reasons we find that the agency should not have dismissed
the harassment claim. Accordingly, we AFFIRM the FAD in part and REVERSE
the FAD in part and remand issue 1, the harassment claim, to the agency
for a hearing before an AJ, pursuant to the January 5, 2007 AJ decision2.
ORDER
The agency shall provide complainant with notice of a right to a hearing,
pursuant to 29 C.F.R. � 1614.108(f) within thirty (30) days of the day
this decision becomes final. Following the issuance of said notice,
the agency shall process complainant's complaint in accordance with
applicable EEOC regulations.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z0408)
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
September 4, 2008
__________________
Date
1 The agency failed to recognize that complainant had filed an MSPB
claim on this issue.
2 The record indicates that an investigation has been completed, but
complainant has not received a hearing.
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0120081851
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081851