01A42475
06-10-2004
Howard Armogan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Howard Armogan v. Department of Defense
01A42475
June 10, 2004
.
Howard Armogan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Contract Audit Agency),
Agency.
Appeal No. 01A42475
Agency No. C02-08
Hearing No. 350-2003-08132X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated February 6, 2004, dismissing his 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of national
origin (Guyanese/India), disability (alleged impairment of Hepatitis
C), and reprisal for prior EEO activity (arising under Title VII and
the Rehabilitation Act) when, on August 8, 2002, his performance was
assessed as unacceptable for the period October 1, 2001, to August 8,
2002, and he was placed on a Performance Improvement Plan (PIP).<1>
Complainant filed his formal EEO complaint on September 13, 2002.
Effective April 7, 2003, the agency removed complainant from the position
of Senior Auditor, GS-12. Complainant filed an appeal with the Merit
Systems Protection Board (MSPB) regarding his removal. A hearing
was held before an MSPB Administrative Judge (MSPB AJ) on August 26,
2003, and August 27, 2003. The MSPB AJ issued an initial decision on
October 31, 2003, finding that the agency properly removed complainant
for unacceptable performance, and that complainant failed to prove his
affirmative defense that the removal was based on illegal discrimination.
Complainant's Petition for Review of the MSPB's Initial Decision is
currently pending.
Complainant also requested a hearing before an EEOC Administrative Judge
(EEOC AJ) on his EEO complaint concerning the 2002 performance evaluation
and PIP. On January 26, 2004, the EEOC AJ dismissed the EEO complaint
for lack of jurisdiction because the issues had already been considered
and adjudicated in the agency's favor by the MSPB. The EEOC AJ, citing
Marchini v. Department of Agriculture, EEOC Request No. 05930880 (January
21, 1994), found that �issues of discrimination considered by the MSPB
in a �performance-based' removal appeal are considered �inextricably
intertwined' with the removal if the claims involved pre-removal
agency actions that preceded, supported or were connected with a later
performance-based removal action.� On February 6, 2004, the agency
adopted and fully implemented the EEOC AJ's Order of Dismissal, and,
it is from this final order that complainant appeals to the Commission.
On appeal, complainant admits that the removal adjudicated by the MSPB
is inextricably intertwined with his 2002 EEO complaint. Nevertheless,
he contends that his removal is also inextricably intertwined with a
2001 EEO complaint. He argues that it cannot be determined whether
the agency discriminated against him with regard to his 2002 complaint,
identified above, or his removal, without a finding on whether he was
discriminated against when he was issued his 2001 performance appraisal.
The agency responds that Commission precedent in Marchini, as well as
other cases, support its final order, and that the merits of the 2001
performance appraisal were not raised by complainant in the instant
complaint, and are not before the Commission on appeal.
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. EEOC Regulation
29 C.F.R. � 1614.302(b) provides that an aggrieved person may elect to
file a mixed case EEO complaint with an agency pursuant to 29 C.F.R. Part
1614, or a mixed case appeal on the same matter with the MSPB, pursuant
to 5 C.F.R. � 1201.151, but not both.
The Commission finds that complainant's September 13, 2002 complaint is
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4). The issue of
whether complainant's 2001 performance appraisal was discriminatory is not
at issue in the instant complaint. Nevertheless, we note that on May 25,
2004, the same AJ as in the instant case dismissed complainant's complaint
regarding the 2001 performance appraisal, stating that the Commission
lacked jurisdiction as it was inextricably intertwined with the complaint
in the instant case, which has already been adjudicated by the MSPB.
Final agency action regarding that complaint is currently pending.
The record in the instant case shows that the allegations concerning the
2002 performance evaluation and placement on the PIP are inextricably
intertwined with the issue of removal, over which the MSPB accepted
jurisdiction and rendered an initial decision on October 31, 2003.
Although complainant filed his EEO complaint prior to filing an appeal
with the MSPB, we find that complainant's allegations of discrimination
surrounding his 2002 performance evaluation and placement on the PIP
merged with his MSPB appeal. Therefore, we conclude that complainant
elected to bring the instant matter before the MSPB. See 29 C.F.R. �
1614.302(b); Marchini v. Department of Agriculture, EEOC Request
No. 05930880 (January 21, 1994). Accordingly, we AFFIRM the agency's
final order dismissing the complaint.
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
June 10, 2004
__________________
Date
1Complainant amended his complaint on
September 24, 2002, to withdraw color and sex as bases for the alleged
discrimination.