Davis v. Department of Veterans Affairs (2002)

Marnell R. Davis v. Department of Veterans Affairs
01A14505
March 20, 2002
.

Marnell R. Davis,
Complainant,

v.

Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 01A14505

Agency No. 200P-2846

DECISION
Complainant filed an appeal with this Commission from an agency decision
dated June 13, 2001, dismissing her complaint pursuant to 29 C.F.R. §
1614.107(a)(4), on the ground that she had first raised the matter
in an appeal to the Merit Systems Protection Board (MSPB).  In her
EEO complaint dated April 23, 2001, complainant claimed that she was
discriminated against on the basis of her race (African-American) when,
effective April 8, 2001, she was demoted from the position of Health
System Specialist, GS-13, to Management/Program Analyst, GS-11.

The record shows that by letter dated October 3, 2000, the agency issued
a decision to suspend complainant from her employment without pay for 90
calendar days and to demote complainant to the position of Administrative
Officer, Ambulatory and Primary Care, GS-341-11.  Complainant filed
an appeal with the MSPB regarding the agency’s decision to suspend and
demote her, and a hearing was held before an MSPB Administrative Judge
(AJ) on February 13, 2001 through February 14, 2001.<1>  The AJ issued an
initial decision on February 28, 2001, finding that complainant failed
to prove that she was discriminated against by the agency, sustaining
some of the agency’s charges against complainant, and concluding that
the maximum reasonable penalty for complainant included a demotion,
but not a suspension.  The AJ remanded the matter for a new penalty
determination consistent with his decision, and ordered the agency to
cancel complainant’s demotion and suspension, and substitute in its place
a penalty not to exceed a demotion to the position of Administrative
Officer, GS-11.  The AJ’s decision became final on April 4, 2001.
By letter dated March 26, 2001, the agency determined that the penalty
of demotion to the position of Management Program Analyst, GS-343-11,
step 10, was appropriate, with the demotion becoming effective on April
8, 2001.  On April 23, 2001, complainant filed a formal EEO complaint
claiming that she was discriminated against on the basis of race
(African-American) when she was demoted by the agency on April 8, 2001.
As mentioned above, the agency issued its decision on June 13, 2001,
dismissing complainant’s complaint for having previously raised the
matter in an appeal to the MSPB, and, it is from this decision that
complainant appeals to the Commission.

On appeal, complainant maintains that her EEO complaint and her appeal
to the MSPB were not based on the same personnel action.  Complainant
asserts that her April 8, 2001 demotion was an act independent of the
original decision issued by the agency on October 3, 2000, to suspend
and demote complainant.

The agency responds that it properly dismissed complainant’s EEO complaint
because in the AJ’s February 28, 2001 decision, the AJ addressed both the
agency’s decision to take disciplinary action and the agency’s decision to
impose a particular penalty.  Furthermore, the agency imposed the penalty
of demotion in compliance with the AJ’s order in that MSPB decision.

EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that an agency shall
dismiss a complaint where the complainant has raised the matter in an
appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that the complainant
has elected to pursue the non-EEO process.  EEOC Regulation 29 C.F.R. §
1614.302 applies to mixed case complaints.  A mixed case complaint is an
EEO complaint which is related to, or stems from, an action that can be
appealed to the MSPB.  EEOC Regulation 29 C.F.R. § 1614.302(b) provides
that an aggrieved person may elect to file a mixed case EEO complaint with
an agency pursuant to 29 C.F.R. Part 1614, or a mixed case appeal on the
same matter with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both.

In the instant case, the record shows that on February 28, 2001, a
decision was entered by a MSPB AJ regarding the same matter described
in complainant’s EEO complaint.  It is clear that complainant filed
an appeal with the MSPB prior to filing her EEO complaint, because the
EEO complaint stems from the AJ’s Order in the February 28, 2001 MSPB
decision, and the Agency’s implementation of that Order.  For purposes of
an election, the employee is considered to have elected the forum in which
she first filed.  Accordingly, complainant has elected the MSPB forum.
The agency’s dismissal of complainant’s EEO complaint pursuant to 29
C.F.R. § 1614.107(a)(4) was proper, and is therefore AFFIRMED.
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

March 20, 2002
__________________
Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed.  I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:

__________________
Date

______________________________
1Complainant’s appeal to the MSPB was consolidated with that of another
agency employee who was represented by the same attorney.

Patsalides v. Department of Treasury (2001)

Harry G. Patsalides v. Department of Treasury
01A13749
October 12, 2001
.


Harry G. Patsalides,
Complainant,

v.

Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 01A13749

Agency No. TD-00-1030

DECISION

INTRODUCTION

Complainant filed this timely appeal to the final agency decision (FAD)
dismissing his complaint of unlawful discrimination.  The appeal is
accepted pursuant to 29 C.F.R. § 1614.401(a).  For the reasons stated
below, the Commission AFFIRMS the dismissal of the complaint.

BACKGROUND

The record reveals the following information.  Prior to the agency
action at issue, complainant was employed as a Supervisory Criminal
Investigator in the agency's Office of Inspector General.  On February
4, 1999, complainant received from the agency's Assistant Inspector
General for Investigations a notice of proposed removal, based on four
violations in 1998 of codified ethical guidelines for Supervisory Criminal
Investigators.  In the notice, the agency stated that the final decision
to effect the removal action had not yet been made, that this decision
would be made by the Deputy Inspector General, and that complainant
would be placed on administrative leave pending the final decision in
the matter.

On March 23, 1999, complainant sought EEO counseling, claiming that
the agency discriminated against him on the bases of age (over 50), sex
(male), and in retaliation for his prior EEO activity in issuing this
notice.  Complainant alleged to the EEO counselor that the result of the
notice was his being placed on administrative leave, being barred from the
office, and that the notice eliminated any possibility for him to acquire
an SES position which had been promised to him in the settlement of a
prior EEO complaint.  He claimed that he had been discriminated against
by the agency “as a male over the age of 50” because female and younger
special agents had engaged in serious misconduct; investigation of this
conduct was stopped by the Assistant Inspector General for Investigations;
the Assistant Inspector General for Investigations ended the detail of
the investigating agents; none of the investigating agents had discipline
proposed against them; and  complainant had been constantly asked when he
was going to retire.  Complainant also claimed that he had been treated
differently than younger agents, but the EEO counselor's report does
not indicate how complainant was so treated.

On May 3, 1999, the Deputy Inspector General made his final decision
in the matter, sustaining three of the four charges.  As a penalty,
the Deputy Inspector General suspended complainant for thirty days and
reassigned him to a non-supervisory criminal investigator position.
The final decision also provided that complainant could appeal that
decision to the Merit Systems Protection Board (MSPB) within thirty
days of the effective date of the decision (May 9, 1999).  On May 28,
1999, complainant timely filed an appeal of the agency's action with
the MSPB.  However, on July 30, 1999, the parties settled the claim.
On August 4, 1999, the settlement was reviewed and accepted by an MSPB
Administrative Judge (AJ), and, as a result, the AJ dismissed the appeal.
Complainant did not raise in the MSPB appeal the claims he had previously
presented to the EEO counselor.

On October 14, 1999, complainant received from the EEO counselor a
notice of right to file a discrimination complaint, which he timely
did on October 28, 1999.  In his complaint, complainant alleged he had
been discriminated against on the bases of religion (Greek Orthodox),
sex (male), national origin (Greek), age (date of birth July 7, 1942),
and in retaliation for his prior EEO activity when the agency treated
him disparately and failed to abide by a prior settlement agreement.
He alleged that this discrimination had taken place on various dates from
September 1998 through July 1999, and that as a result he had suffered a
loss of reputation, pay, position, status, and health.  Complainant did
not describe the alleged discriminatory acts in greater detail, but,
through correspondence between the agency and complainant's counsel,
the issues for investigation were agreed to be:

Whether management discriminated against Complainant based on religion
(Orthodox), sex (male), National Origin (Greek), age (DOB: July 7, 1942
(56)), and retaliated against Complainant for previous participation in
the EEO process (filed previous EEO complaint) when:

Management placed Complainant on Administrative Leave commencing on or
about February 5, 1999 through May 7, 1999;

Management instructed Complainant not to return to the building on
February 5, 1999; and



Management went forward with the results of an OIG [Office of Inspector
General] investigation on February 4, 1999, and attempted to coerce
Complainant to resign.

On March 7, 2000, the agency issued its FAD dismissing the complaint
because complainant raised the claim in an appeal to the MSPB.  See 29
C.F.R. § 1614.1017(a)(4)  (agency shall dismiss complaints where matter
has been raised in an appeal to the MSPB and complainant has elected
to pursue the non-EEO process).  In the FAD, the agency stated that
dismissal was proper as the issues accepted for investigation were
interrelated with the thirty day suspension which had been appealed
to the MSPB.  It also noted that the settlement agreement reached in
that dispute precluded complainant from instituting any further legal
or administrative actions on the issues raised in the MSPB appeal.
Complainant subsequently filed this timely appeal of the dismissal.

ANALYSIS AND FINDINGS

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. 29 C.F.R. § 1614.302(a)(1).  An aggrieved person may
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.  29 C.F.R. § 1614.302(b).  29 C.F.R. § 1614.107(a)(4)
provides that an agency shall dismiss a complaint where the complainant
has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302
indicates that the complainant has elected to pursue the non-EEO process.

In the instant case, the matter appealed to the MSPB was the May 3,
1999 agency final decision on the matter, but the claims presented to
the EEO counselor, and which were the subject of the complaint, related
to the agency's actions in response to the charged ethical violations
by complainant, prior to the issuance of a final agency decision on
the matter.  Complainant argues on appeal that these claims could not
have been presented to the MSPB because it lacked jurisdiction over
those issues.  The Commission finds that the claims concerning the
agency's placement of complainant on administrative leave, banning him
from the facility, and attempting to coerce him into resigning, which
are the subject of the EEO complaint of October 28, 1999 are inextricably
intertwined with the claims presented in the MSPB appeal of May 28, 1999.
Therefore, we find that the allegations raised in complainant's EEO
complaint are subsumed by the MSPB appeal, and that complainant will be
held to have elected to resolve his claims arising out of this matter
with the MSPB.

We note that it is the position of the Commission that upholding the
unequivocal legislative intent to provide only one forum in which to
challenge the propriety of an agency action alleged to have been based,
in whole or in part, on discriminatory factors, takes precedence over
a complainant's equitable entitlement to have an adjudication of that
issue in one forum or the other.  Aho v. Department of Agriculture,
EEOC Request No. 05860085 (May 22, 1987).  Further, the Commission is
mindful here of the doctrine of res judicata, which precludes a party from
asserting a cause of action in a second forum when the involved issues
have been decided, or could have been raised and adjudicated, in previous
litigation prompted by the same controversy between the same parties.  Id.

Accordingly, we agree with the agency that dismissal of the EEO complaint
was proper.  The final agency decision is AFFIRMED.

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


   October 12, 2001
Date

Grievances and Other Forums

If an employee files a grievance – or an MSPB appeal- and he/she has referenced the same issues that they are referencing in their EEO complaint, they can  only have the EEO compliants addressed in one forum, and typically it is the forum that they were able to get to first.

If they get to the grievance process first and raise the same issues that have been raised in the EEO complaint,  the employee cannot then elect to have the issue addressed in the EEO forum also, but only the grievance forum. (See Hadley, Chapter 19 EEO Alternatives I. Negotiated Grievance procedures) for more clarification. “the

Therefore, if an employee checks on their EEO complaint form. “I filed a grievance through the negotiated grievance procedure” you will need to go back to the EEO counselor and find out:

1. When was a grievance filed and

2. What were the issues raised in the grievance.

Ask the Counselor something like this:

Good Afternoon Counselor:

I need to know if any grievances have been filed with regard to the issues raised FS-2014-00ooo. In his formal complint, the Complainant has indicated that he has filed a grievance, (I am assuming with  the Forest Service Council National Federation of Federal Employees.)   At this point we need to determine whether he has filed this grievance on the specific issues that he has raised in his formal EEO complaint.

This is important because it determines an election of forum issue.  An employee may not pursue an allegation of discrimination through both the negotatied grieaven procedure and the EEO complaint process. The employee must shoose one or the other.

If the Complainant did file a grievance, I will need for the file copies of his grievances and any response issued by management, to ensure his election of the alternative forum was accepted. ( I am assuming that you will be able to upload this information into i-complaints, and I will retrieve it from there.)

 

 

 

 

Footnote – Collective Bargaining Agreement Allows Claims of Discrimination

As provided in the applicable collective bargaining agreement, that grievance procedure permits allegations of discrimination, see Master Agreement Between FS and NFFE (CBA), Art. 9, ¶ 3 (Oct. 25, 2010) (allowing complaint by “any … [e]mployee concerning any matter relating to his or her employment”), and the FS is subject to 5 U.S.C. § 7121(d). See CBA, Art. 9, ¶ 1; see also 29 C.F.R. § 1614.301(a) (complainant must choose between the EEO process and the negotiated grievance procedure where agency subject to 5 U.S.C. § 7121(d)); CBA, Art. 9, ¶ 6 (noting that the filing a grievance constitutes an election of forum and generally precludes filing a complaint within the EEO process, or other statutory forums).