0120073560
09-17-2009
Robert Steven Mitchell, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Robert Steven Mitchell,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120073560
Agency Nos. CRC-03-06-141,
CRC-04-06-020,
CRC-05-06-109
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 5, 2007, finding no discrimination with regard to
his three complaints of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
In his first complaint, Agency No. CRC-03-06-141 (complaint #1),
filed on August 12, 2003, complainant alleged that he was subjected
to discrimination and a hostile work environment on the bases of sex
(male), disability, age (59), parental status (parent of a school-aged
child), and in reprisal for prior protected EEO activity arising under
Title VII, the ADEA and the Rehabilitation Act when his supervisor
took negative actions against him, including but not limited to: 1)
informing complainant that she wanted him out of the work place and
removed from federal service; 2) moving complainant out of his large
corner office and moving a lower-graded employee into it; 3) requesting
that GSA withdraw his parking space accommodation; 4) taking away his
agency laptop; 5) removing him from flexi-time and flexi-place; and 6)
denying his request for a reasonable accommodation.1
In his second complaint, Agency No. CRC-04-06-020 (complaint #2), filed
on December 3, 2003, complainant claimed that the agency had continued
to harass and discriminate against him on the same bases. Complaint #2
was consolidated with complaint #1, to include the following actions
engaged in by his supervisor: 7) requiring him to return to work on
September 8, 2003, from sick leave against the advice of his physician; 8)
requiring him to use two hours of annual leave for time spent to complete
his timesheets on September 8, 2003; 9) denying him an opportunity, on
September 11, 2003, to take a downgraded position as an accommodation
for his disabilities by announcing a position at the GS 7/9 level as
opposed to the 11/12 level; 10) making "veiled threats" on September
19 and October 1-2, 2003 concerning accusations that complainant and a
subordinate employee were committing fraud in the submission of travel
vouchers; and 11) introducing another employee as the DOL Safety Officer
at a Federal Protective Service security meeting on October 10, 2003,
instead of complainant, among numerous other actions.
The agency conducted an investigation into complaints #1 and #2, and
complainant requested a hearing before an EEOC Administrative Judge
(AJ) on November 14, 2004. On April 29, 2005, complainant withdrew his
hearing request and requested a final agency decision on the record.
In his third complaint, Agency No. CRC-05-06-109 (complaint #3),
filed on June 17, 2005, complainant claimed that he was subjected to
discrimination and a hostile work environment on the bases of sex (male),
disability, age (60), and in reprisal for prior protected EEO activity
arising under Title VII, the ADEA and the Rehabilitation Act when on
April 30, 2005, he was constructively discharged when he was forced to
retire from federal service in order to avoid further harassment and
a hostile work environment, and as a result of the agency's failure to
accommodate his disabilities.
At the conclusion of the investigation of complaint #3, the agency
notified complainant that his allegation of a constructive discharge
rendered the complaint a "mixed-case" matter, appealable to the Merit
Systems Protection Board (MSPB). The agency then consolidated all three
complaints, "in the interest of efficiency," for the issuance of a final
agency decision (FAD).
Complainant's third complaint was processed as a mixed case complaint
in accordance with 29 C.F.R. � 1614.302, which provides that at the
time the agency issues a final decision, it must advise complainant of
the right to appeal to the MSPB, not EEOC. Although the agency properly
notified complainant of his right to appeal to the MSPB when it issued its
final consolidated decision, complainant attempted to bifurcate the FAD.
He noted on his appeal form that he was appealing complaints #1 and #2
to the Commission, and that complaint #3 had been appealed to the MSPB.
Other than this notation on the appeal form, complainant has presented
no argument on appeal regarding why this appeal should be considered by
the Commission.
On October 9, 2007, the agency notified the Commission that the MSPB
was still determining jurisdiction. In an Initial Decision issued on
April 14, 2008, on MSPB Docket number DA-0752-07-0509-I-1, an MSPB AJ
dismissed complainant's MSPB appeal regarding his claimed involuntary
retirement for lack of jurisdiction.
Upon review, we dismiss the matter for lack of jurisdiction.
The Commission's regulations governing the processing of mixed case
complaints require that, should the MSPB dismiss an appeal from the
agency's processing of a mixed case complaint for lack of jurisdiction,
the agency is required to recommence processing the matter as a non-mixed
case complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Therefore, in the event
the Board denies complainant's petition, the agency is required to process
the complaint of discrimination as a "non-mixed" matter pursuant to 29
C.F.R. � 1614.109 et seq. Accordingly, complainant may request either
a final agency decision or may request a hearing before an EEOC AJ on
the three consolidated complaints.
Accordingly, complainant's appeal is DISMISSED.
NOTICE TO THE PARTIES
Complainant is advised that by operation of 29 C.F.R. �1614.302(c)(2)(ii),
the agency is required to process the allegation of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency
shall acknowledge to the complainant that it has received the remanded
matter within thirty (30) days of the date this decision becomes final.
The agency shall issue to the complainant a copy of the investigative
file and also shall notify the complainant of the right to a hearing
before an EEOC Administrative Judge within sixty (60) 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 the complainant's request.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_____9/17/09_____________
Date
1 Two additional issues were dismissed by the agency for failure to
state a claim.
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0120073560
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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