01973956
06-22-1999
Sam H. Smith, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sam H. Smith v. Department of Veterans Affairs
01973956
June 22, 1999
Sam H. Smith, )
Appellant, )
) Appeal No. 01973956
v. ) Agency Nos. 91-1315
) 92-2074
Togo D. West, Jr., ) 93-2531
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DISMISSAL
Appellant filed the instant appeal on April 17, 1997, from a final agency
decision ("FAD") dated March 12, 1997. The FAD held that the evidence of
record failed to substantiate appellant's allegations of discrimination.
The FAD also determined that appellant's complaints were mixed case
complaints and that such complaints are only appealable to the MSPB.
It is from these determinations that appellant now appeals.
BACKGROUND
Appellant filed his initial EEO complaint on May 3, 1982, contending that
the agency discriminated against him on the basis of race (Black) and
age (53). On January 23, 1989, the Administrative Judge ("AJ") assigned
to the case rendered a recommended decision finding discrimination and
ordering certain remedial measures. The agency adopted the AJ's finding
of discrimination on April 3, 1989. After the parties disputed the
implementation of the remedy, this Commission issued an order instructing
the agency to retroactively promote appellant to the position of Hospital
Housekeeping Officer (Trainee), GS-673-09. The Order further directed the
agency that after appellant successfully completed his training period,
he was to be placed in a Housekeeping Officer, GS-11, position.
On March 29, 1991, appellant filed a formal EEO complaint alleging
that, during his training, the agency provided him with trivial,
non-instructive assignments as means of harassment and retaliation.
Appellant filed another complaint, on May 22, 1992, alleging further
harassment and retaliation by means of improper assignments and training.
On August 10, 1992, appellant filed a complaint after the agency removed
him from his training position and reassigned him to the position of
Pest Control Operator, WG-08. The agency stated that the reassignment
resulted because appellant had failed to successfully complete his
Hospital Housekeeping Officer training.
After the agency accepted and processed appellant's complaints,
he requested a hearing before an AJ. On October 31, 1996, the AJ
remanded the complaint back to the agency, noting that the reassignment
and events surrounding the reassignment were appealable to the Merit
Systems Protection Board ("MSPB"). See 5 C.F.R. part 432; 5 U.S.C. 4303.
Therefore, the AJ found that the reassignment complaint was a mixed
case complaint as defined by 29 C.F.R. � 1614.302(a) and that the other
complaints were intertwined with the mixed case complaint. Thus, the
AJ determined that she did not have the authority to hold a hearing and
remanded the case for the issuance of a FAD. In its FAD dated March 12,
1997, the agency found that appellant had not been discriminated against
with regard to the reassignment and notified appellant that, if he was
dissatisfied with the agency's decision on his mixed case complaint,
he must appeal the matter to the MSPB.
Instead of filing an appeal with the MSPB, appellant appealed the FAD to
the Commission, asserting that the complaints involve reprisal and are
not mixed case complaints. Appellant further requests that the Commission
enter a substantive judgement in his favor with the appropriate remedies.
ANALYSIS
Initially, appellant should be aware that a mixed case complaint is a
complaint of employment discrimination filed with an agency relating
to or stemming from an action that may be appealable to the MSPB.
See 29 C.F.R. � 1614.302(a). A MSPB appealable claim generally
involves a competitive service employee who was subject to actions
such as a reduction in grade or removal for unacceptable performance.
If an individual is dissatisfied with the FAD concerning her/his mixed
case complaint, the individual must file the appeal with the MSPB.
See generally 29 C.F.R. � 1614.302. In the instant case, appellant was
reassigned from his position as a Hospital Housekeeping Officer Trainee,
GS-11, to the position of Pest Control Operator, WG-08. Since this is
a demotion, the jurisdiction for such a case lies with the MSPB. As for
the other complaints in this appeal, we agree with the AJ and find that
such allegations are inextricably intertwined with appellant's allegation
challenging his reassignment, and thereby should be heard by the MSPB.
Consequently, the Commission finds that it does not have jurisdiction to
entertain a direct appeal from the FAD, which correctly advised appellant
that his appeal must be filed with the MSPB. Therefore, this appeal is
hereby DISMISSED.
Appellant is advised that 5 U.S.C. �7702(f) provides that when "an
employee timely files [an] appeal ... with an agency other than the
agency with which the ... appeal ... is to be filed, the employee shall
be treated as having timely filed the ... appeal ... as of the date it
is filed with the proper agency."
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 (S0993)
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. 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:
June 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations