Alton F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 9, 2016

0120152514 (E.E.O.C. Nov. 9, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alton F.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120152514

Hearing No. 532-2014-00113X

Agency No. 4C-440-0011-14

DECISION

The Commission accepts Complainant’s appeal from the Agency’s June 4, 2015 final order
concerning his equal employment opportunity (EEO) complaint alleging 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Solon, Ohio. On January 22, 2014, Complainant filed a formal
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), sex (male), color (Black), and in reprisal for prior protected EEO activity when:

1. On or around October 3, 2013, Complainant received a Notice of Proposed
Removal for Failure to Follow Instructions;
2. On or around October 26, 2013, Complainant received notice that effective October
28, 2013, he would be placed in an administrative leave status, and effective

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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November 6, 2013, he would be placed in a non-duty status (Leave without Pay)
pending removal from the Postal Service;
3. On or around November 22, 2013, Complainant received a Notice of Proposed
Removal for Failure to Follow Instructions/Failure to work in a Safe Manner; and
4. On or around December 11, 2013 the Complainant received a Letter of Decision
Notice of Proposed Removal Dated October 3, 2013.

On February 22, 2014, Complainant amended his complaint to allege that the Agency
discriminated against him on the bases of sex (male) and in reprisal for prior protected EEO
activity when:

5. On or around February 21, 2014, Complainant became aware that from pay period
1-2014 and continuing, his leave hours (Annual and LWOP) have not been correct;
and
6. On unspecified dates, Complainant was denied Unemployment Insurance and
benefits.2

The Agency accepted the matter as a mixed case complaint and processed the complaint
pursuant to procedures in 29 C.F.R. § 1614.302. The Agency informed Complainant that a
final agency decision (FAD) without a hearing would be issued within 45 days of the date of
his receipt of the investigative report.

At the conclusion of the investigation, the Agency issued Complainant a Transmittal of
Investigative File notice which provided him a copy of the report of investigation (ROI).
Despite being identified and processed as a mixed case complaint, the Transmittal of
Investigative File provided Complainant notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. An AJ was assigned to the matter and granted summary judgment in
favor of the Agency finding that Complainant had not been subjected to discrimination or
reprisal as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed. On appeal, Complainant argues that the AJ erred in granting
summary judgment in favor of the Agency. Complainant contends that the AJ’s decision
contains several factual errors and that the Commission’s rules were not followed.
Accordingly, Complainant requests that the Commission reverse the final order.

2 The Agency dismissed two additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for
stating the same claim that is pending before or has been decided by the Agency or
Commission. The Commission finds no basis to disturb the Agency’s dismissal of these
claims.
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ANALYSIS AND FINDINGS

The record reveals that the Agency issued a Notice of Revised Acceptance of Investigation –
Mixed Case acknowledging receipt of Complainant’s formal complaint and informing him that
his complaint would be processed as a mixed case complaint with appeal rights to the Merit
Systems Protection Board (MSPB). Additionally, the subsequent Investigative Report
indicated that the matter was investigated as a mixed case complaint. However, the
Transmittal of Investigative File notice provided Complainant rights to request a hearing before
an EEOC Administrative Judge or to request a final agency decision.

Pursuant to 29 C.F.R. § 1614.302(d)(2), upon completion of the investigation of a mixed case
complaint, an agency is required to provide the complainant notice advising him that that a
final decision will be issued within 45 days without a hearing. The Agency's decision on the
merits of a mixed case complaint is then appealable to the MSPB, not the EEOC. 29 C.F.R. §
1614.302(d)(1)(ii). A review of the record shows that the Agency erred by failing to issue a
final decision following the investigation of the mixed case complaint and instead incorrectly
provided Complainant with rights to a hearing before an EEOC Administrative Judge.
Accordingly, the Commission VACATES the Agency’s final order and REMANDS the
complaint for further processing in accordance with the ORDER below.

ORDER

The Agency is ORDERED to issue Complainant a final decision on the merits of
Complainant's claims within forty-five (45) calendar days of the date that this decision is
issued. Assuming the complaint is a mixed-case complaint, as identified by the Agency, the
Agency’s decision must provide Complainant with exclusive and appropriate appeal rights to
the Merit Systems Protection Board (not the EEOC), pursuant to 29 C.F.R. § 1614.302(d)(3).
A copy of the Agency's decision shall be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
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action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
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appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 9, 2016
Date