01974103
09-07-1999
Richard Satornino, Appellant, v. Togo D. West, Jr., Secretary, Dept. of Veterans Affairs, Agency.
Richard Satornino, )
Appellant, )
) Appeal No. 01974103
v. ) Agency No. 94-1106
) Hearing No. 150-95-8064X
Togo D. West, Jr., )
Secretary, )
Dept. of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether the agency properly dismissed allegations
1-4 (below) of appellant's EEO complaint because the allegations should
have been adjudicated on appeal before the MSPB on the same matter.
During the relevant time, appellant had been employed by the agency as
a Medical Clerk, GS-4, but had since been terminated. Believing that he
was a victim of discrimination based on his national origin (Italian)<1>
and reprisal, appellant sought EEO counseling and later filed a formal
EEO complaint dated November 10, 1993, wherein he alleged that he had
been discriminated against as follows:
1. on or about July 14, 1993, he was detailed from his position as
Medical Clerk, GS-4, Mental Health Clinic, to the position of Medical
Clerk, GS-4, File Room, Medical Information Unit (MIU);
2. on August 20, 1993, the MIU Supervisor told appellant that from then
on he was to notify the Lead Clerk every time he left his work unit.
That same day, the Lead Clerk saw him using the phone and picked up
a stack of records and threw them on the floor. The Lead Clerk then
grabbed the phone from appellant and slammed it down, demanding that
they meet with the Administrative Officer;
3. on August 23, 1993, the Chief Medical Officer questioned a physician
as to why appellant had met with him. He then informed the physician
that criminal charges had been brought against appellant for trying to
defraud the government and entering false information into the hospital
computer system, and that his employment had been terminated;
4. on August 24, 1993, appellant was detailed to the Assistant
Administrative Officer as a GS-4 Medical Clerk; and
5. on August 25, 1993, two agency police officers approached appellant,
one of whom was in a hostile mood. This officer said that appellant had
implied his (the officer's name) in a report and that he did not like it,
and that he would use it against him.
The agency complied with all procedural and regulatory prerequisites,
and on February 21, 1997, the EEOC Administrative Judge (AJ), finding no
material facts in dispute, issued a Recommended Decision (RD) without a
hearing. In it, he recommended that the agency dismiss the allegations of
harassment concerning incidents 1-4, since he found that these incidents
were �inextricably intertwined� with the issue of appellant's removal,
which appellant had earlier appealed to the Merit Systems Protection
Board (MSPB) on October 21, 1993. The AJ noted that the doctrine of
res judicata estops a party from establishing jurisdiction in a second
forum where, as here, the involved issues could have been raised and
adjudicated in previous litigation prompted by the same controversy
between the parties.
The AJ further found that appellant could not establish a prima facie case
of discriminatory harassment in regard to incident 5 for the following
reasons: the incident was isolated in nature, and appellant could not
show that comparative employees in similar situations were not also
subjected to the actions complained of, or that the security official
involved had knowledge of his prior EEO complaint. Subsequently, the
agency adopted the RD as its own final decision. Neither appellant nor
the agency made any contentions on appeal.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws in regard to incident 5.
We therefore discern no basis to disturb the AJ's finding of no
discrimination concerning this incident.
However, it's clear the AJ and agency committed procedural error in
allowing the agency to dismiss the allegations of harassment concerning
incidents 1-4, for the following reasons: appellant had appealed his
termination to the MSPB on October 21, 1993, before he filed his formal
EEO complaint with the agency on November 10, 1993. In such a case where,
as here, the agency does not dispute MSPB jurisdiction, EEOC Management
Directive (MD) 110, Chapter 3, Section II(B)(4)(a) at p. 3-4, states that
�the agency must thereafter dismiss any complaint on the same matter,
regardless of whether the allegations of discrimination are raised in
the appeal to the MSPB.� Furthermore,�[t]he agency must advise the
complainant that (s)he must bring the allegations of discrimination
contained in the dismissed complaint to the attention of the MSPB,
pursuant to 5 C.F.R. � 1201.155.� See also EEOC Regulations 29 C.F.R. ��
1614.107(d); 1614.302(c)(2)(i).
The agency did not do this, however, but accepted allegations 1-4 and
proceeded with an investigation. This Commission has previously ruled
that when an agency improperly continues to process EEO allegations
after it has knowledge that a MSPB appeal on the same matter previously
has been filed, it may not later cancel those allegations based on the
mixed case regulations. Johnson v. Department of Justice, EEOC Appeal
No. 01920885 (April 8, 1992). In that case, the appellant failed to
raise allegations of discrimination in the MSPB appeal because the agency
accepted his EEO complaint and proceeded with an investigation. We find
that a similar situation exists in the instant case. Because the agency
failed to advise appellant to bring allegations 1-4 to the attention of
the MSPB once it had knowledge of the MSPB appeal, but instead proceeded
with an investigation, the matter ceases to be a �mixed case� and
should have been processed as an ordinary federal sector EEO complaint
in order to provide the complainant with a forum for his allegation of
discrimination. Johnson, supra.
Therefore, in order to ensure that appellant is provided a forum for his
discrimination complaint to be heard, we will remand incidents 1-4 to
the agency for continued processing as a �non-mixed� complaint. We also
caution the agency that in the future, when an employee has filed an MSPB
appeal on a removal action before filing an EEO complaint on the same
matter, the agency should immediately inform the appellant in writing
that it has canceled that portion of his EEO complaint and advise him
that he should raise his claims of discrimination before the MSPB.
Accordingly, the Commission hereby AFFIRMS that part of the FAD finding
no discrimination in incident 5, but VACATES and REMANDS that part of the
FAD dismissing incidents 1-4 as part of a �mixed case� before the MSPB.
To remedy its error, the agency shall take the actions listed in the
order below and the subsequent paragraphs preceding the Statement of
Rights on Appeal.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.109 et seq. The agency shall acknowledge to the
appellant that it has received the remanded allegations within thirty
(30) calendar days of the date this decision becomes final and advise
appellant that it has requested the appointment of an EEOC AJ pursuant to
29 C.F.R. � 1614.109(a). The agency shall make every effort to expedite
the scheduling of a hearing on this matter.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The
Commission notes that although
appellant alleged discrimination based
on race (Italian), Italian is more
appropriately classified as national
origin.