Footnote – Probationary Period Termination

[1] Because the Complainant was terminated during her probationary period, she has limited rights to appeal to the Merit Systems Protection Board. Because she has not alleged discrimination based on one of the narrow grounds of available to such employees, this complaint cannot be processed as a “mixed case” pursuant to 29 C.F.R. § 1614.302.

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