0120122389
10-26-2012
Duane S. Davis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Duane S. Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122389
Agency No. 200P-0339-2011102683
DECISION
Complainant timely filed an appeal from the Agency's April 5, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency gave Complainant the proper appeal rights when it issued its final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-10 Legal Administrative Assistant at the Agency's Veterans Affairs Regional Office (VARO) in Denver, Colorado. Complainant was hired by the Agency in 1988 and became a Legal Administrative Assistant in 1999. As a Legal Administrative Assistant, Complainant's primary duty was to interview veterans about their needs for benefits and other services.
Between 1996 and 2006, Complainant was diagnosed by Agency medical staff as having hypertension, a chronic back problem, and congestive heart failure. On or about October 22, 2010, Complainant's physician informed the Agency that Complainant was restricted to work eight hours per day, four days per week, and from sitting for prolonged periods of time. Complainant retired from the Agency in March 2011.
On May 24, 2011, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the bases of race (African-American), disability, age (born in 1948), and reprisal when:
1. The Agency exceeded Complainant's medical consent and privacy rights when his physician conducted tests on his blood and urine for illegal drugs;
2. On March 10, 2011, the Agency moved him from his private office to a cubicle in a different area, which forced him to spend more time on his feet and exacerbated his disability; and
3. On March 31, 2011, the Agency forced Complainant to retire because of intolerable working conditions.
In an investigative statement, Complainant stated that he has worked in the interview room since 2007, although he placed his file cabinet in a small cubicle. Complainant stated that he did not sit in the cubicle, but after EEO mediation on March 3, 2011, he received an e-mail directing him to move from the interview room to a cubicle. Complainant further stated that, on or about March 9, 2011, he advised S1 and a Human Resources Specialist that the move would slow his service to veterans and cause undue strain on his body. Complainant stated that he moved to the cubicle, but his "resentment and spirit" were at an all-time low.
Complainant stated that being forced to move to a cubicle caused him to retire. Complainant stated that management knew that when he was reassigned to a cubicle, his physical disabilities would become "unbearable" and that "they had my mental state close to a break point."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and a letter that advised Complainant that a final decision would be issued within 45 days of the letter in accordance with EEO regulations regarding the processing of mixed-case complaints.
Final Agency Decision
In its final decision, the Agency dismissed claim 1 on the basis that it failed to state a claim because it involved matters that were outside the purview of EEO regulations. Regarding claims 2 and 3, the AJ found that Complainant was a qualified individual with a disability and established a prima facie case of disability discrimination and reprisal. The decision further found that management offered a legitimate, non-discriminatory reason for moving Complainant from an interview room to a cubicle when it stated that Complainant was moved because the Agency needed more space to interview clients. The Agency found that Complainant failed to prove that the Agency's explanation was pretext for unlawful discrimination. The decision further concluded that the alleged actions were not severe or pervasive enough to constitute a hostile work environment, and the alleged conduct did not make Complainant's working conditions intolerable to such an extent that he was constructively discharged.
The final decision informed Complainant that he could appeal his constructive discharge claim (claim 3) to the MSPB, not the Commission, within 30 calendar days of receipt of the final decision. The decision further stated that Complainant could appeal his remaining hostile work environment claim (claim 2) concerning his cubicle to the Commission within 30 calendar days of receipt of the final decision. Complainant appealed claims 2 and 3 to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the allegations in his complaint, and the Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Mixed Case Complaint
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 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. 29 C.F.R. � 1614.302(b). Further, an agency is required to inform every employee who is the subject of an action which is appealable to the MSPB, and who has raised the issue of discrimination "during the processing of the action," of the right to file a mixed-case complaint or to file a mixed-case appeal with the MSPB. See Gray v. USPS, EEOC Request No. 05910824 (Dec. 19, 1991); Lauderdale v. Dep't of the Army, EEOC Request No. 05910033 (Feb. 15, 1991). An agency's decision on the merits of a mixed-case complaint is appealable to the MSPB, not the Commission. 29 C.F.R. � 1614.302(d)(1)(ii).
In this case, Complainant alleged that the Agency constructively discharged him (claim 3). Generally, constructive discharge or involuntary removal claims alleging discrimination are processed as mixed-case complaints. See 5 C.F.R. � 752.401(a)(1); 29 C.F.R. � 1614.302(a) & (d). Upon review of the record, we determine that claim 2, which alleges that the Agency subjected Complainant to a hostile work environment and failed to provide Complainant with a reasonable accommodation, is inextricably intertwined with claim 3, Complainant's constructive discharge claim. Specifically, Complainant contends that moving his office to a cubicle made it difficult for him to physically perform the duties of his job, and he was unable to continue working. Adjudication of the reasonable accommodation and hostile work environment claims is necessary in order to determine whether or not Complainant's retirement was "voluntary." Therefore, we conclude claim 2 is inextricably intertwined with Complainant's constructive discharge claim.
Consequently, the Agency should have advised Complainant of his right to appeal its decision in its entirety to the MSPB. See 29 C.F.R. �1614.302(d)(1)(ii). As such, we find that the Agency misinformed Complainant when it stated that claim 2 could be appealed to the EEOC. See Webb v. Dep't of the Air Force, Appeal No. 01A45789 (Sept. 22, 2006) (Agency should have issued a decision with appeal rights to the MSPB in mixed-case complaint wherein complainant alleged constructive discharged when forced to retire because of harassment); Spaulding v. U.S. Postal Serv., EEOC Appeal No. 01A41443 (Apr. 16, 2004). In light of the Agency's error, we will remand the matter to the Agency for re-issuance of its final decision together with appropriate appeal rights.
CONCLUSION
Accordingly, the Commission VACATES the Agency's final decision and REMANDS this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ORDERED to issue a new final decision on Complainant's mixed-case complaint that contains proper appeal rights to the MSPB. A copy of the Agency's new final decision and notice of appeal rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 26, 2012
Date
2
0120122389
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122389