Robert E. Frazier, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01985964 (E.E.O.C. May. 19, 2000)

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.