0120072580
08-31-2007
Alex Young, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Alex Young,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120072580
Agency No. LLM05013
Hearing No. 550200600021x
DECISION
On May 4, 2007, complainant filed a timely appeal with this Commission
from the agency's decision dated April 30, 2007, which agreed to
implement the decision of the EEOC Administrative Judge (AJ) dismissing
the complaint of unlawful employment discrimination in violation of
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 his
complaint, complainant alleged that he was subjected to discrimination
on the bases of disability (post-traumatic stress disorder (PTSD)), age
(D.O.B. 3/17/1945) (withdrawn), and in reprisal for prior protected EEO
activity when his team leader subjected him to a hostile work environment
in January 2005, and his supervisor failed to accommodate him when he
cancelled his work-at-home agreement in November 2004. At the time,
complainant held the position of Landscape Architect, Bureau of Land
Management, until he was removed due to his medical inability to perform
the duties of his position.1
The sole issue before us is whether the AJ properly dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4) on April 2,
2007.2 In support, the AJ found that the issues in his complaint were
inextricably intertwined with his MSPB appeal and that the MSPB-AJ
thoroughly reviewed the record and issued a decision covering the
issues in his complaint. Initially, we note the Commission's long
standing position that allegations of discrimination that may not be
independently appealed to the MSPB, but are "inextricably intertwined"
with an action that may be so appealed, should be addressed in that forum.
See, e.g., Stan v. Department of the Air Force, EEOC Request No. 05960266
(May 19, 1998).
The claims raised in the instant complaint--that the agency discriminated
against complainant based on disability (failure to accommodate) and
reprisal, were raised by complainant as affirmative defenses in his MSPB
appeal, thereby signaling his election to pursue these matters in the
non-EEO process. See 29 C.F.R. � 1614.302. His claims were considered
by the MSPB-AJ in sustaining the agency's removal action and finding that
it was not discriminatory. EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
requires the dismissal of an EEO complaint where the complainant has
filed an appeal with the MSPB. For these reasons, the Commission agrees
with the AJ's dismissal of the instant complaint.
CONCLUSION
Accordingly, the agency's final order 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
___8-31-07_______________
Date
1 On May 11, 2005, the agency issued complainant a notice of removal
effective September 2, 2005; complainant retired in lieu thereof.
He filed an appeal to the Merit Systems Protection Board (MSPB), and a
MSPB Administrative Judge (MSPB-AJ) sustained the agency's action in an
Initial Decision dated February 27, 2007, which became final on April 3,
2007; the MSPB-AJ found that complainant failed to prove his affirmative
defenses of disability, i.e., he was not an individual with a disability
and not entitled to a reasonable accommodation; and reprisal, i.e., his
supervisor did not act in retaliation. On July 20, 2007, the MSPB denied
complainant's Petition for Review filed on May 4, 2007, as untimely.
The MSPB-AJ afforded complainant rights of review by the Commission,
but complainant filed a Petition with the MSPB, and a copy to the
Commission, which was docketed as the instant appeal, without comment.
See MSPB No. SF-0752-06-0443-I-2.
2 Complainant did not address the AJ's action in his Petition to the
MSPB, but in response to the AJ's Notice of intent to dismiss of March 2,
2007, the complaint argued that the MSPB lacked jurisdiction to decide
the claims of discrimination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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