0120072732
09-13-2007
Michael D. Ray, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Michael D. Ray,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120072732
Agency No. DECA000232007
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 25, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was improperly dismissed, pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim.
Complainant was employed as a Meat-cutter Worker at a California facility
of the agency. In September 2001, complainant began experiencing
a mental impairment,1 sought medical treatment, and stopped working
shortly thereafter. The agency terminated complainant's employment,
effective May 31, 2003, for absence without leave (AWOL), and complainant
appealed his removal to the Merit Systems Protection Board. Subsequently,
in July 2004, the agency cancelled its May 31 removal of complainant.
Complainant continued not to work.
In a letter dated July 10, 2006, the agency questioned complainant's
employment status and informed him that, if he intended to continue
working for the agency, he had to report for work no later than July
25, 2006 and perform his full range of duties. The agency informed
complainant of an opportunity to resign by July 25 or risk placement on
AWOL status and possible further disciplinary action. In a memo dated
August 9, 2006, the agency warned complainant of excessive absences
and, on September 18, 2006, proposed complainant's removal due to
such absences. On October 12, 2006, complainant initiated contact
with an Equal Employment Opportunity (EEO) Counselor alleging that the
agency discriminated against him on the basis of disability (Adjustment
Disorder with Anxiety) when it proposed to remove him from employment.
Subsequently, on November 4, 2006, the agency removed complainant from
agency employment.
Complainant filed a formal EEO complaint on February 26, 2007 alleging
that the agency discriminated against him by ignoring his disability
that commenced on September 12, 2001, and by causing the disability
and then taking him from duty. Complainant stated that the agency can
not remove an employee who has a disability as determined by the Social
Security Administration and he has a pending application for retirement
that he filed in March 2006 under the Office of Personnel Management.
In its April 25 final decision, the agency dismissed complainant's
complaint for failure to state a claim. The agency explained that a
preliminary step to taking a personnel action does not render an employee
aggrieved. The agency added that complainant filed a mixed case appeal
with the MSPB in November 2006, so he elected to pursue the MSPB process.
Complainant acknowledged that he filed an MSPB appeal on November 20,
2006, but asserted that his EEO contact in October 2006 was an election
to proceed in the administrative EEO process.2
We note that when a complaint is filed on a proposed action and the
agency subsequently proceeds with the action, the action is considered
to have merged with the proposal. See Siegel v. Dep't of Veterans
Affairs, EEOC Request No. 05960568 (October 9, 1997). Thus, we find that
complainant's claim regarding the proposed removal action merges with his
claim alleging discrimination in connection with the actual removal action
and, consequently, complainant's complaint is a mixed case complaint.
A mixed case complaint is a complaint of employment discrimination filed
with a Federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person
may initially file a mixed case complaint with an agency or may file a
mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151,
but not both. 29 C.F.R. � 1614.302(b). 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. In the instant matter, complainant stated that he
filed a mixed case appeal with the MSPB in November 2006, however, the
MSPB does not have record of an action in 2006 or 2007 from complainant.
Consequently, we find that the instant mixed case complaint shall
be processed. Accordingly, the agency's final decision dismissing
complainant's complaint is REVERSED and we REMAND the matter to the agency
for processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to 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 (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
September 13, 2007
__________________
Date
1 The record contains a portion of a letter from the Social Security
Administration, finding that complainant was entitled to benefits for a
period of disability commencing September 12, 2001 and that he receive
a subsequent medical review due to potential for improvement.
2 We note that the MSPB does not have record of an action filed by
complainant in 2006 or 2007.
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0120072732
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072732