01A31403
02-23-2004
Kevin Patterson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Kevin Patterson v. United States Postal Service
01A31403
February 23, 2004
.
Kevin Patterson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A31403
Agency Nos. 1H-321-0115-98; 1H-321-0075-00;
1H-321-0093-00; 1H-321-0109-00;
1H-321-0020-01; 1H-321-0031-01; & 1H-321-0067-01
Hearing Nos. 150-A0-8914X; 150-A0-8925X; 150-A1-8055X
150-A1-8280X; 150-A2-8224X; 150-A2-8110X; & 150-A2-8387X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission reverses
and remands the agency's final order.
ISSUE PRESENTED
The issue on appeal is whether the agency properly adopted the AJ's
decision to dismiss complainant's EEO complaints on the ground that
complainant had filed an appeal with the Merit Systems Protection Board
(MSPB).
BACKGROUND
The record shows that from September 8, 1998 through August 22, 2001,
complainant filed seven formal EEO complaints of discrimination which
are relevant to the instant appeal. Complainant alleged discrimination,
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., on the bases of race (Black), sex
(male) and reprisal (prior EEO activity) when: (1) on July 24, 1998, he
was harassed on the workroom floor and in the shop steward's area when
he was removed from the union booth for performing union work that he
was not given the opportunity to perform during his regular work hours;
(2) on March 22, 2000, he was denied leave and given a direct order
not to speak with anyone on the workroom floor; (3) on March 26, 2000,
he was denied overtime and given a Seven-Day Suspension; (4) on April
24, 2000 he was harassed when letters were sent to his doctor to verify
documentation he submitted in support of his absence from work; (5) on
May 31, 2000, he was charged absent without leave (AWOL) for May 25, 2000;
(6) on June 21, 2000, he was taken off his bid job; (7) on June 22, 2000,
he was given a statement in which his supervisor made threats to him;
(8) on January 4, 2001, he was charged AWOL; (9) from January 6, 2001
to January 19, 2001, he was not allowed to work; (10) on January 24,
2001, he was issued a letter of warning; (11) on February 15, 2001,
he was issued a notice of a seven-day, no time off suspension and he
was placed in an intimidating situation regarding a safety pole; (12)
on July 13, 2001, he was harassed by a supervisor about a tow motor key;
(13) on July 22, 2001 and August 15, 2001, he was given a fact-finding
interview; and (14) on August 16, 2001, he was issued a 14-day suspension.
ANALYSIS AND FINDINGS
The record shows that complainant timely requested a hearing before an
EEOC Administrative Judge (AJ) on all his complaints. The investigative
files were transferred to the Miami District Office for the assignment
of an AJ and the scheduling of a hearing. Prior to a hearing, the
AJ dismissed complainant's claims, without prejudice, finding that
complainant's claims were �inextricably intertwined� with a termination
claim he previously filed with the MSPB on October 1, 2002. Specifically,
the AJ concluded that in making its decision to terminate complainant on
April 19, 2002, the agency asserted that it relied upon complainant's
past disciplinary record, which included several suspensions, letters
of warning and misconduct that were the subject of several complaints
pending before the EEOC. Accordingly, the AJ concluded that such matters
before the EEOC were inextricably intertwined with the termination claim
which was then pending before the MSPB.
From the characterization of the issues, it appears that several of the
claims above may have been inextricably intertwined with the termination
issue. The Commission has held that allegations of discrimination which
are not independently appealable to the MSPB, but are inextricably
intertwined with an action such as a removal, which is appealable to
the MSPB, should be processed in that forum. See Bivens v. Department
of the Navy, EEOC Request No. 05890476 (April 30, 1990). Based on
the record before us, however, we are unable to determine whether the
agency's dismissal of the above claims was proper. The record does not
contain a copy of either the termination complaint, or any documentation
concerning complainant's MSPB appeal. Because the agency failed to
provide sufficient documentation to substantiate its assertions that the
complaints are inextricably intertwined, the Commission finds that the
dismissal of the above complaints was improper and remands such complaints
to the agency for further processing in accordance with the Order below.
See Poirrier v. Department of Veterans Affairs, EEOC Appeal No. 01933308
(May 5, 1994).<1>
ORDER
The agency shall submit to the Hearings Unit of the Miami District Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy
of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
February 23, 2004
__________________
Date
1 We note that in the event the MSPB fails to consider the claims
above, the agency and AJ are required to continue the EEO processing of
complainant's claims in accordance with 29 C.F.R. � 1614.106 et. seq.
See EEOC's Management Directive 110, pp. 4-5 & 4-6 (November 9, 1999).