0120062698
09-14-2007
Victor L. Gilbert, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Victor L. Gilbert,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01200626981
Agency No. FWS-04-003R4
DECISION
The record indicates that on August 8, 2003, complainant contacted
an EEO Counselor with regard to his complaint. Unable to resolve the
matter informally, complainant filed the complaint dated November 24,
2003, which was later amended a number of times, alleging discrimination
based on race (African American), sex (male), and in reprisal for prior
EEO activity. Specifically, complainant alleged that he was subjected to
harassment/hostile work environment from July 23, 2003 through December 1,
2003, when:
(1) On July 23, 2003, his supervisor told him to return to the
Regional Office from his alternate work-site, after he notified his
supervisor that a complaint had been filed against his supervisor;
(2) On October 7, 2003, he was denied the opportunity to be present
and to coordinate events at an EEOC hearing on October 28, 2003, although
he had been present at all other EEOC hearings;
(3) On October 7, 2003, his supervisor pulled his cell phone usage
log and recommended that an investigation be conducted into his cell
phone usage; and,
(4) On December 1, 2003, he was denied an annual performance award
for the rating period of September 2002 through September 2003.
Therein, complainant also alleged that he received a memorandum from
the Human Resources Officer and Chief, Diversity and Civil Rights,
on April 13, 2004, subjecting him to continued harassment/hostile work
environment through the following incidents effective April 12, 2004:
(5) He was detailed to a position with unclassified duties;
(6) He was suspended from conducting EEO counseling activities;
(7) He was told to turn over his counseling workload to an EEO
Specialist in the Washington, D. C. office;
(8) He was told to immediately return his government and telephone
credit cards to his supervisor.
(9) The agency conducted an investigation into his travel and related
records;
(10) He was forced to resign from his position on May 26, 2004; and
(11) He was suspended for more than fifteen (15) days.
Complainant also alleged that:
(a) On March 4, 2003, he was required to submit a written request
for an accommodation to work at an alternate worksite, and had to pay
out-of-pocket expenses to move agency documents and equipment to the
alternate work site;
(b) On February 5, 2003, he was denied the opportunity to act as Chief,
Diversity and Civil Rights because of information he wrote in a summary
analysis report;
(c) In December 2002, he was denied an annual performance award;
(d) On November 4, 2002, he received an award that was less than other
similarly situated employees who acted as Chief, Diversity and Civil
Rights;
(e) In November 2002, he was denied an opportunity to be detailed to
Washington, D.C. when other EEO Specialists in Diversity and Civil Rights
were approved to participate; and
(f) On September 18, 2002, he was told by the former Assistant Regional
Director, Budget and Administration that she was going to burn the
notification letters when she retired.
Initially, the record indicates that on February 5, 2005, the agency
previously dismissed claims (a) through (f) due to untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Upon review, the
Commission finds that since the alleged incidents therein occurred from
September 2002 through March 2003, complainant's EEO Counselor contact on
August 8, 2003, was beyond the 45-day time limit set by the regulations.
On appeal, complainant fails to present adequate justification to
warrant an extension of the applicable time limit for contacting an EEO
Counselor.
With regard to claims (1) through (11), the agency issued its decision
on January 4, 2006, by enclosing its previous decision dated February
4, 2005. We note that although the agency in its decision found no
discrimination concerning the complaint by addressing the merits of the
case, the alleged claims are more properly dismissed on the procedural
grounds for raising the same matters in an appeal to the Merit Systems
Protection Board (MSPB), pursuant to 29 C.F.R. � 1614.107(a)(4). Thus,
the matters will be addressed accordingly herein.
The record indicates that during the pendency of the agency's
investigation of claims (1) through (11), on December 27,
2004, complainant filed an appeal to the MSPB, Docket Number
AT-0752-05-0247-I-1, alleging that he was subjected to a hostile work
environment described in the claims at issue, which occurred while he was
employed at the agency, and his resignation, described in claim (10),
was involuntary. In its initial decision dated February 22, 2005, the
MSPB stated that there was no evidence in the record that complainant
was suspended for more than 14 days (or even one day), as described in
claim (11). In fact, the agency, undisputed by complainant, stated that
complainant was never suspended.
With regard to the alleged claims of hostile work environment and the
constructive discharge claim, the MSPB stated that on April 29, 2004,
complainant was issued a notice of proposed removal for: his improper
acceptance of government monies totaling approximately $2,300; his
filing claims for reimbursement totaling approximately $1,063 to which
he was not entitled; misuse of a government credit card on more than 60
occasions during the period from May 27, 2002, until June 14, 2003; and,
his misuse of government equipment (his government cellular telephone).
The notice of proposed removal provided complainant with 30 calendar
days from the date of his receipt to reply to the above charges, but he
failed to do so. The MSPB found that complainant, by his own admission,
resigned on May 26, 2004, before his opportunity to reply ended. Based on
the foregoing, the MSPB determined that complainant's resignation was
voluntary. The MSPB found no basis that complainant's working conditions
were intolerable based on any alleged discrimination.
Based on the foregoing, the Commission finds that claims (1) through (9)
should be considered part of the alleged constructive discharge claim
(10) which was clearly addressed by the MSPB. Furthermore, the MSPB
also addressed claim (11). The record also indicates that following
complainant's subsequent petition for review of the MSPB's initial
decision concerning claim (5), i.e., concerning only the retaliatory
detail due to his protected whistleblower activities, the subject matter
is pending before the Board at this time. 2 Therefore, the Commission
finds that claims (1) through (11) are properly dismissed for raising the
same in his appeal to the MSPB. Furthermore, after a thorough review of
the record, the Commission also agrees with the agency's finding that
complainant was not subjected to unlawful discrimination as alleged in
his complaint.
Accordingly, the agency's decision 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
09/14/2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The record indicates that complainant subsequently filed a petition for
review of the MSPB's initial decision of February 22, 2005, concerning
a corrective action in his Individual Right of Action (IRA) appeal.
Specifically, complainant alleged that the agency detailed him to
unclassified duties on April 12, 2004, described in claim (5), because
of his protected whistleblower activities. On March 8, 2006, the MSPB
Board issued its decision vacating the initial decision finding that
complainant might be entitled to possible non-status quo ante relief
despite his resignation if he prevailed on his Whistleblower Protection
Act (WPA) claim. Specifically, the Board stated that "it is undisputed
that [complainant] resigned after filing his OSC complaint. As a result,
since [complainant] is no longer a Federal employee, the Board is unable
to return him to status quo ante with regard to the agency's action of
detailing him to unclassified duties."
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0120062698
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036