01985964
05-19-2000
Robert E. Frazier, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert E. Frazier v. United States Postal Service
01985964
May 19, 2000
Robert E. Frazier, )
Complainant, )
)
v. ) Appeal Nos. 01981775; 01985964
) Agency No. H1-0026-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The complainant timely initiated appeals to the Equal Employment
Opportunity Commission (EEOC) from the final decision of the agency
concerning complainant's claim that the agency violated Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. The appeals are accepted in accordance with 64 Fed.Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405) These appeals
are hereby consolidated for processing pursuant to EEOC Regulation 29
C.F.R. � 1614.606.<1>
The issues on appeal are whether the agency properly dismissed Issues 1,3,
and 4, below, on procedurals grounds and whether the agency discriminated
against complainant on the basis of race (Black) with regard to Issue
2, below. Before us are the following claims:
(1) on September 1, 1995, complainant received a Letter of Removal;
(2) on May 23, 1995, he was sent for a Psychiatric Fitness for Duty
examination;
(3) on May 24, 1995, the Psychiatrist found him fit for duty; and,
(4) on May 19, 1995, he was placed on Administrative Leave.
The record shows that on April 28, 1995, complainant was involved in a
physical altercation with an agency officer (the Officer). Complainant
initiated EEO counseling on July 21, 1995, and filed a formal EEO
complaint on October 25, 1995, raising the issues stated above and one
other issue. The complaint was originally dismissed in its entirety for
untimeliness. Complainant appealed the dismissal to the Commission which
affirmed the dismissal of one issue and remanded the other four issues
(stated above) for further fact finding regarding whether complainant's
initial EEO contact was timely. (Appeal No. 01963484 (July 16, 1997).
On October 10, 1995, complainant also filed an appeal with the Merit
Systems Protection Board (MSPB) regarding his removal. An MSPB hearing
was held and on February 7, 1996, the MSPB administrative judge (AJ)
issued an initial decision (ID) which reinstated complainant with backpay
and benefits retroactive to September 29, 1995. The AJ determined that
the evidence did not support the agency's primary reason for terminating
complainant, that he made false statements regarding the April 1995
incident. Complainant did not raise with the MSPB the issue of race
discrimination.
On November 19, 1997, the agency issued a final agency decision (FAD
1), at issue herein, which accepted Issue 2 for investigation and
dismissed the remaining claims. The agency dismissed claims 1 and 4
on the grounds that complainant raised the issue of his removal with
the MSPB. The agency noted, with respect to claim 4, that complainant
obtained full relief on this matter through the MSPB when the MSPB AJ
ordered restoration of complainant's benefits. Concerning claim 3,
the agency found that complainant failed to state a claim. On June 24,
1998, the agency issued a final agency decision (FAD 2) which addressed
the merits of Issue 2 and found no discrimination. Complainant now
appeals FADs 1 and 2 with regard to the four claims stated above.
EEOC regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved person
may initially file a mixed case complaint with the agency or an appeal
on the same matter with the MSPB, but not both. This section further
provides that if an individual files both a mixed case complaint and MSPB
appeal on the same matter, whichever is filed first shall be considered
an election to proceed in that forum.
Here, complainant chose to challenge his removal through the MSPB. We
find that the issues of complainant's psychiatric Fitness for Duty
examination and his placement on administrative leave were inextricably
intertwined with the issue of complainant's removal; the MSPB necessarily
considered these matters in order to determine if complainant's removal
was proper. Therefore, we find that complainant's claims regarding
the Fitness-for-Duty examination and the administrative leave were
merged with his MSPB appeal and were under the MSPB's jurisdiction. See
Marchini v. Department of Agriculture, EEOC Request No. 05930880 (January
21, 1994).
Furthermore, we find that complainant made an informed election when he
chose to challenge his removal (and related claims) through the MSPB
and that he should have raised his discrimination claim and related
compensatory damages claim with the MSPB. See King v. Department of
Veterans Affairs, EEOC Request No. 05920857 (April 26, 1993). The record
shows that: (1) on August 16, 1995, he received a copy of the booklet,
What You Need To Know About EEOC; (2) he discussed his MSPB appeal
with the EEO Counselor; and (3) in the EEO Counselor's letter of final
interview, complainant was issued information regarding the EEO and the
MSPB processes.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
decision with regard to claims 1, 3, and 4. Claim 2 is dismissed as
being merged with the removal action which was appealed to the MSPB.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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. � 1614.604(c).
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:
05-19-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.