Howard K. Durfee, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01a02090 (E.E.O.C. May. 19, 2000)

01a02090

05-19-2000

Howard K. Durfee, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Howard K. Durfee v. Department of Agriculture

01A02090

May 19, 2000

Howard K. Durfee, )

Complainant, )

)

v. ) Appeal No. 01A02090

) Agency Nos. 990748, 990091, 980823

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

We find that the agency's December 10, 1999 final decision which

dismissed the complaints is proper pursuant to the provisions of 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(4)). <1>

This appeal addresses the agency decision to dismiss three separate

complaints filed by Complainant. In Agency Case No. 980823, filed on July

8, 1998, Complainant claimed that he had been discriminated against on

the basis of reprisal when the agency conducted an illegal and improper

investigation regarding his conduct. In Agency Case No. 990091, filed

on October 29, 1998, Complainant once again claimed that he had been

discriminated against on the basis of reprisal when the agency conducted

an illegal investigation on his conduct. In Agency Case No. 990748,

filed on June 2, 1999, Complainant claimed that he had been discriminated

against on the basis of reprisal when he was issued a 21-day suspension.

The record further shows that on June 9, 1999, Complainant filed an

appeal before the Merit Systems Protection Board (MSPB) claiming that,

as reprisal for his "protected union activities, [and] past and ongoing

EEO activity", he had been issued a 21-day suspension without pay.

The agency issued a final decision dismissing all three complaints

"because the issues cited have been raised before the MSPB". After

finding that Complainant had filed two identical complaints regarding

the issue of its investigation of Complainant's conduct, the agency also

determined that the "issue of the investigation into Complainant's conduct

is also dismissed because it is inextricably linked to the suspension

issue". On appeal, Complainant contends that he was never allowed

to present any evidence or testimony due to inadequate representation

before the MSPB. He further contends that while the issues he raised

in his formal complaints were related to harassment as reprisal for his

EEO activity, the issues he raised before the MSPB were related to his

activities as a union officer.

A review of the record does not support Complainant's contentions on

appeal. While he claims that before the MSPB he only raised issues

related to his union activities, in his MSPB appeal form Complainant

stated that he believed the 21-day suspension was the result of reprisal

for his union activities and his past and present EEO activities.

A review of the record shows that the MSPB appeal addressed the issues

raised by Complainant in his formal complaint of discriminations:

the 21-day suspension as well as the steps followed by the agency

(investigation) to make a determination concerning Complainant's alleged

improper conduct. The record further shows that in his MSPB appeal

Complainant stated that the agency's action was in retaliation for his

past and present EEO activities. However, the record also shows that

all three of the instant complaints were filed before the date that

the MSPB appeal was filed, June 9, 1999. Nevertheless, we find that

the instant complaints merged with the matter before the MSPB and were

"inextricably intertwined" with said matter, thereby requiring dismissal

of the complaints. See Moore v. USPS, EEOC Request No. 05970164 (July

23, 1998). Accordingly, the three complaints were properly dismissed

pursuant to 29 C.F.R. �1614.107(a)(4).

Accordingly, the final agency decision was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 19, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________ __________________________

DATE Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.