01A10606
07-25-2002
Lynda Baker, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Lynda Baker v. Department of the Interior
01A10606
July 25, 2002
.
Lynda Baker,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A10606
Agency No. BIA-98-064
DECISION
The complainant timely initiated this appeal from the final agency
decision (FAD) concerning her 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In her complaint, the complainant alleged that she had been subjected
to unlawful discrimination on the bases of her race (Native American),
color (brown), religion (Christian), national origin (American), sex,
and age (forty-nine years old at the time of the agency actions at issue),
and suffered retaliation based upon her prior EEO activity, when:
(1) on August 3, 1995, her supervisor fired her in writing and ordered
her out of her office;<1>
(2) her supervisor repeatedly denied her training on several occasions;
(3) on February 3, 1997, she became aware that a younger employee was
given a promotion;
(4) on March 14, 1997, her secretarial duty of answering the telephone
was removed;
(5) on May 5, 1997, she was assaulted in the workplace by her supervisor;
and
(6) on May 6, 1997, the superintendent, accompanied by a federal law
enforcement officer, hand delivered to her at her residence two documents.
As to claim (6), complainant contends that one of these documents granted
her request for administrative leave, ordered her not to return to the
workplace pending review of the results of a mandatory referral to the
agency's Employee Assistance Program (EAP), and stated that complainant's
failure to do as instructed would result in her being placed on AWOL
status, which could lead to disciplinary action. She contends that
the other document was written by her supervisor, stated that she had
demonstrated conduct which was unacceptable, and provided her with the
aforementioned mandatory referral to the EAP.
The record on appeal indicates that the aforementioned claims were
presented to the agency in the form of several individual complaints of
discrimination and retaliation, and that these complaints were filed
with the agency between March 10, 1997 and June 24, 1997. The agency
consolidated the complaints in May, 1999, and assigned June 24, 1997 as
the filing date for the consolidated complaint. The agency initiated
an investigation into the consolidated complaint in March, 2000, but the
record is unclear as to whether or not the investigation was completed.
Nor does the record provide any explanation for the agency's three-year
delay in investigating complainant's claims.
On September 30, 2000, the agency issued a FAD in the matter, dismissing
the complaint. In its FAD, the agency identified that complainant had
been terminated by the agency on October 24, 1997, that the agency had
provided her with appeal rights from that termination to the Merit Systems
Protection Board (MSPB), and that on November 21, 2000, complainant
exercised those rights and appealed the termination to the MSPB.<2> The
agency stated in its FAD that it had determined that, upon its review
of the documents generated by the complainant's appeal to the MSPB,
including hearing transcripts and the MSPB's decision on the appeal,
complainant had, or should have, raised in her MSPB hearing all of the
claims present in her discrimination complaint. The agency concluded
that complainant had elected to pursue her claims through the MSPB rather
than the administrative EEO process, and dismissed her EEO complaint.
Complainant then filed the instant appeal from that dismissal.
Our regulations define a mixed case complaint as �a complaint of
employment discrimination filed with a Federal agency based on race,
color, religion, sex, national origin, age or handicap related to or
stemming from an action that can be appealed to the [MSPB],� 29 C.F.R. �
1614.302(a)(1), and a mixed case appeal as �an appeal filed with the MSPB
that alleges that an appealable agency action was effected, in whole or in
part, because of discrimination on the basis of race, color, religion,
sex, national origin, handicap or age,� 29 C.F.R. � 1614.302(a)(2).
Our regulations also provide that �[a]n aggrieved person may initially
file a mixed case complaint with an agency pursuant to this part or
an appeal on the same manner with the MSPB . . . but not both.� 29
C.F.R. � 1614.302(b). As a general rule, issues not appealable to the
MSPB should be processed separately from issues which are appealable to
the MSPB. Stan v. Department of the Air Force, EEOC Request No. 05960266
(May 19, 1998) (citing Mascarenas v. Department of Defense, EEOC Request
No. 05920240 (May 18, 1992)). The Commission has repeatedly held,
however, that agency actions not independently appealable to the MSPB,
but which are �inextricably intertwined� with an appealable action,
should be raised in that forum when the appealable action is presented to
the MSPB. Id. The Commission has also held that even claims raised in
the EEO process prior to the filing of a separate MSPB appeal should be
addressed by the MSPB in that appeal, if the EEO claims are inextricably
intertwined with the action appealed to the MSPB, and therefore dismissal
of the EEO complaint is proper. Gaines v. Department of the Navy,
EEOC Request No. 05980813 (Oct. 8, 1998).
In the instant appeal, we cannot agree with the agency's conclusion that
the nature of the complainant's MSPB appeal warranted dismissal of all
of her EEO claims. The record reveals that, in the prosecution of her
appeal to the MSPB, the complainant raised, as an affirmative defense to
the agency's termination action, the claim that she had been subjected
to discriminatory treatment in the workplace based upon her sex and in
retaliation for her prior EEO activity. In support of that affirmative
defense, she identified the agency actions at issue in claims (1),
(2), and (4) above as incidents of reprisal and sex discrimination.
Furthermore, the record makes clear that the agency actions identified
in claims (5) and (6) above were raised by the complainant in her MSPB
appeal, and, as these incidents directly relate to her October 24,
1997 termination, are inextricably intertwined with that termination.
Therefore, we agree with the agency that claims (1), (2), (4), (5), and
(6) above were properly dismissed as having been raised or considered
in the complainant's MSPB appeal.
We do not agree, however, that the agency's dismissal of claim (3)
above was correct. The agency's FAD does not indicate where in the
MSPB proceedings the complainant raised this claim, and our review of
the record on appeal indicates that the complainant did not raise claim
(3) in her presentation to the MSPB. Also, the MSPB did not address
this claim in its decision. Nor can we conclude that claim (3) is so
inextricably intertwined with the complainant's appealable termination
so as to require that she should have raised that claim in that forum.
Accordingly, we find that the agency's dismissal of claim (3) above
was incorrect.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision of
the Commission to AFFIRM the FAD in part, REVERSE in part, and REMAND the
matter to the agency for continued processing of the remaining claim�that
on February 3, 1997, the complainant became aware that a younger employee
was given a promotion.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
the complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
July 25, 2002
Date
1 The complainant continued to work at the agency despite this alleged
dismissal.
2 There is no indication in the record that the complainant raised
the issue of her October 24, 1997 termination to an EEO counselor or
otherwise sought to have this agency action included in her discrimination
complaint.