01A22123_r
08-07-2002
Wesley Crickard, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Wesley Crickard v. Department of Veterans Affairs
01A22123
August 7, 2002
.
Wesley Crickard,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22123
Agency No. 2004-2123
Hearing No. 120-A1-4324X
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final action dated March 21, 2002, implementing an Administrative Judge's
(AJ) dismissal of the complaint 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.
In his EEO complaint filed September 8, 2000, complainant alleged that
he was subjected to discrimination on the bases of sex and in reprisal
for prior protected activity concerning a hostile work environment and
harassment when he was reported and investigated for an incident that
occurred on June 13, 2000. The record reveals that on June 13, 2000,
complainant assisted officers in subduing a suspect which prompted a
patient to report complainant's purportedly aggressive behavior to the
agency. Specifically, complainant alleged that he was harassed by an
Associate Director beginning on February 22, 2000; in June 2000, he was
removed from his position as Chief of Police and placed on administrative
leave until August 2000 when he was given a detail; the agency disclosed
information about his leave status during the investigation; his due
process was denied by the agency's actions in investigating a charge
of excessive force; and in August 2000, he was required to return his
master key.
The record reflects that complainant filed an appeal with the Merit
System Protection Board (MSPB) (MSPB Docket No. DC-0752-01-2820I-1)
concerning his removal as a result of the June 13, 2000 incident.
In his MSPB appeal, complainant detailed the hostile work environment
and harassment during the period when he was reported and investigated
for the June 13, 2000 incident.
After the conclusion of the investigation of complainant's EEO
complaint filed on September 8, 2000, complainant was given a copy of
the Investigative File and notified of his right to request a hearing
and decision before an AJ. By letter dated March 10, 2001, complainant
requested a hearing.
In an MSPB decision dated June 5, 2001, regarding Docket
No. DC-0752-01-2820I-1, an MSPB Administration Judge (MSPB AJ)
ruled that the agency had proven its charges that complainant had
provided inconsistent statements and omitted material facts during
the investigation following the June 13, 2000 incident. The MSPB AJ
concluded that complainant failed to prove that the agency' s actions
were in retaliation for his prior protected activity and whistle blowing
protected activities. The MSPB AJ further concluded that complainant
was not denied due process. The MSPB AJ determined that the agency's
action was mitigated and ordered complainant's removal be cancelled and
in its place the MSPB substituted a 30-day suspension without pay.
The record indicates that on September 28, 2001, complainant, through
his representative, filed a Prehearing Statement regarding his EEO
complaint of September 8, 2000. The record further indicates that
on October 12, 2001, the agency filed its Prehearing Statement and a
Motion to Dismiss/Motion for Summary Judgment. On October 23, 2001,
complainant withdrew his Response/Motion for Summary Judgment. The AJ
dismissed the agency's and complainant's Motions for Summary Judgment
but granted the agency's Motion to Dismiss on procedural grounds. In her
Order of Dismissal and Order of Judgment dated January 28, 2002, the AJ
dismissed complainant's complaint. Specifically, the AJ determined that
complainant's EEO claim is "inextricably intertwined" with his MSPB claim.
Further, the AJ found the only charge raised before the Commission that
may fall outside the jurisdiction of the MSPB matter, that is, the verbal
discussion with an Assistant Director in February 2000 which complainant
terms a verbal reprimand. The AJ determined that the verbal discussion
does not state a claim. Thereafter, in a final order dated March 21,
2002, the agency implemented the AJ's decision.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can
be appealed to the MSPB. See 29 C.F.R. � 1614.302(a)(1). An aggrieved
person may elect to initially file a mixed case complaint with an agency
or may file a mixed case appeal directly with the MSPB pursuant to 5
C.F.R. � 1201.151, but not both. See 29 C.F.R. � 1614.302(b). Moreover,
whichever is filed first, shall be considered an election to proceed in
that forum. See Dillon v. U. S. Postal Service, EEOC Appeal
No. 01981358 (December 23, 1998) (citing Milewski v. U.S.Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
Upon review, the Commission determines that the agency properly dismissed
complainant's EEO complaint as inextricably intertwined with his MSPB
claim. We determine that the MSPB AJ considered complainant's claim that
the agency engaged in discrimination by removing him from his Chief of
the Police position as a result of the June 13, 2000 incident. In the
instant EEO complaint, the AJ found that the specific charges raised by
complainant in describing the hostile work environment and harassment
are those evolving from the June 13, 2000 incident. Consequently, we
determine that complainant's instant EEO claim concerns the same matters
already adjudicated with the MSPB. See 29 C.F.R. � 1614.107(a)(4).
Accordingly, the Commission AFFIRMS the agency's final action implementing
the AJ's dismissal of complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 7, 2002
__________________
Date