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BROOM v. CALDERA

January 19, 2001

FREDERICO T. BROOM, PLAINTIFF,
V.
LOUIS CALDERA, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Before the Court is defendant's motion to dismiss, or in the alternative, for summary judgment, plaintiff's opposition, and defendant's reply. Defendant argues that plaintiff has failed to exhaust his administrative remedies. For the reasons set forth below, the Court will deny defendant's motion.

BACKGROUND

Plaintiff Frederico Broom is an African American male who was employed as a boiler plant operator by the Department of the Army at Walter Reed Army Medical Center (Walter Reed) in the District of Columbia and at its annex in Forest Glen, Maryland. He was born on July 16, 1956 and was diagnosed with bipolar disorder in 1995 and with sleep apnea in 1997.

On January 10, 1997, an oil spill occurred at the Forest Glen annex. Plaintiff maintains that he was not present when the spill occurred. Defendant investigated the spill and determined that plaintiff was responsible for the spill and did not report if. Defendant also determined that plaintiff had been absent without leave on various occasions.

On May 16, 1997, plaintiff received a Proposed Notice of Removal from his position, as a result of his responsibility for the oil spill and for his being placed on AWOL for six days between January 2, 1997 and March 14, 1997. On May 19, 1997, plaintiff filed an informal complaint alleging discrimination with respect to the proposed removal.

On October 30, 1997, defendant determined that plaintiff should be removed from his position. He was offered a "last chance agreement," under which the removal action would be canceled after one year if plaintiff complied with the terms of the agreement. Plaintiff declined to sign the last chance agreement. On that day, plaintiff filed an informal complaint alleging discrimination with respect to the last chance agreement. He received a Decision of Proposed Removal on December 17, 1997, effective January 9, 1998, alleging absence without leave, dereliction of duty in failing to report the oil spill, and failure to follow regulations and procedures with respect to those matters. On January 7, 1998, plaintiff filed an informal complaint regarding the December Decision of Proposed Removal. On that day, he received a document entitled, "Avenues of Redress (Rights and Responsibilities Notice)" from the Army's EEO office. The five-page single-spaced document contains a section entitled, "3. Responsibilities." In that section, it states:

f. You must inform the EEO office of your election of redress. Whichever for mal action you file first (a MSPB mixed case appeal, a discrimination complaint under the EEO complaint procedure, or a written grievance under the negotiated grievance procedure) is considered to an election to proceed only in that forum as to the alleged discrimination. Thus you should be aware that:
(1) An appeal to the MSPB will not be accepted if you have filed a timely formal complaint in writing under the EEO complaint procedure or a timely written grievance under the negotiated grievance procedure.
(2) A discrimination complaint filed under the EEO complaint procedure will be dismissed if you have filed a timely appeal to the MSPB or a timely-written grievance under the negotiated procedure on the same matter.
g. If your complaint is not resolved at the conclusion of counseling, you may file a formal EEO complaint within 15 calendar days of receipt of the counselor's notice of right to file a discrimination complaint.

(Def.Mot.Exh. 1). The EEO counselor who gave him the document did not explain the document to him or talk about his rights and responsibilities, contrary to the provisions of the EEOC's October 1992 Management Directive 110 ("MD-110"), which required that EEO counselors explain the requirements for initiating a formal complaint.

MD-110 imposed other procedural requirements upon defendant, as well:

Immediately upon receipt of a formal complaint of discrimination, the agency shall acknowledge receipt of the complaint in writing. . . . The agencies must also inform the complainant of the issue(s) to be investigated and, if appropriate, that the complaint, or a portion of the ...

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