Kevin Patterson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 23, 2004
01A31403 (E.E.O.C. Feb. 23, 2004)

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).