0120072927
08-22-2007
Michael R. Jones, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Michael R. Jones,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120072927
Agency No. FS-2007-00292
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 21, 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. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of disability (back injury) and reprisal
when:
1. On January 10, 2007, complainant learned that his pay had been
downgraded from a GS-6/10 to a GS-5/10.
2. Complainant did not receive his Sunday differential pay.
3. Complainant did not receive the cost of living adjustment for 2007.
4. The agency failed to respond to his Freedom of Information Act request
dated February 26, 2007.
5. Complainant has been subjected to a hostile work environment.
Complainant indicated that since his injury in 1993, he felt that the
agency's actions and attitude have been to attack him and reduce/eliminate
his rights. He asserted that the agency has tried to take advantage of
him causing extreme stress on him.
The agency dismissed the complaint. The agency only identified claims (1)
- (4) in its final decision. It did not identify complainant's claim of
hostile work environment. As for claims (1) - (4), the agency indicated
that these issues were raised in an appeal before the Merit Systems
Protection Board (MSPB). Therefore, the agency determined that claims
(1) - (3) should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).
In addition, the agency dismissed claim (4) finding that the matter is
not within the jurisdiction of the EEOC. As such, the final decision
dismissed claim (4) for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
Complainant appealed the agency's dismissal of the complaint. On appeal,
complainant indicated that he had been subjected to harassment.
Complainant argued that the years of phone calls and inquiries by the
agency took a toll on him and his family. Complainant also stated that,
as to his claims regarding his wages, he had filed appeals with the MSPB.
Complainant indicated that when he returned to work, he discovered that
he could file an appeal with the MSPB regarding his pay. He initially
filed with MSPB because he had been a GS-7 when he was injured but
was only granted a GS-6/10 position when he was reemployed. The most
recent appeal regarding the same claims as those raised in the instant
complaint, complainant indicated that he requested the withdrawal of
the MSPB appeal.
ANALSYS AND FINDINGS
Claim (5)
As to complainant's claim of a hostile work environment, the agency
failed to acknowledge it. Further, as a result, the agency did not
address this claim in its dismissal. As such, we remand this claim for
further processing.
Claims (1) - (3)
In claims (1) - (3), complainant alleged various issues regarding his pay.
The agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(4).
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). 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. The record shows that complainant did in fact file an appeal
with the MSPB regarding these issues. However, on June 25, 2007, the MSPB
Administrative Judge (MSPB AJ) issued her Initial Decision dismissing the
appeal without prejudice. We note that complainant has filed a petition
for review with the MSPB and has not received a decision. Therefore,
we find that it may be premature to dismiss these claims at this time.
In the event the Board chooses to reverse the dismissal by the MSPB
AJ, then the agency can dismiss these claims pursuant to 29 C.F.R. �
1614.107(a)(4). Accordingly, we find that the agency's dismissal of
claims (1) - (3) was inappropriate and remand these claims for further
processing.
Claim (4)
The agency dismissed claim (4) for failure to state a claim regarding
complainant's claim that the agency failed to respond to his FOIA
request. The Commission has held that it does not have jurisdiction
over the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
his or her FOIA requests under the appropriate FOIA regulations. Gaines
v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997).
In the instant case, therefore, complainant's allegation that the agency
improperly handled his FOIA request fails to state a claim within the
purview of the EEOC regulations at 29 C.F.R. � 1614. Accordingly,
we affirm the dismissal of claim (4).
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decision dismissing
claim (4). However, the Commission REVERSES the agency's dismissal of
claims (1) - (3) and (5), and REMANDS these claims for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims, namely claims (1) -
(3), and (5), 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
August 22, 2007
__________________
Date
2
0120072927
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072927