0120160002
03-01-2016
Bulah C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bulah C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120160002
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 10, 2015, dismissing her pre-complaint contact alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier at the Agency. Complainant indicated that due to the Agency's National Reassessment Process (NRP), she has been off work since April 2009.
On February 19, 2015, Complainant contacted the Agency's EEO Office via telephone to raise claims of discrimination. In response to Complainant's telephone call, the Agency issued a notice of dismissal of her claims, dated March 10, 2015. The Agency noted that Complainant was attempting to raise issues previously processed in other complaints. The Agency indicated that Complainant alleged her displacement from her position in April 2009 and her return to work in March 2013. The Agency stated that these claims were identical to those raised in Agency No. 1F-914-0022-09, and subsumed in the McConnell class action, EEOC Hearing No. 520-2008-00053X. To the extent Complainant alleged non-disability claims, the Agency asserted that it was subject to EEOC Appeal No. 0120100350 and a decision was issued by the EEOC on March 25, 2010.
The Agency also claimed that Complainant alleged discrimination when she was subjected to discrimination when, in March 2013, she received a modified job offer. The Agency indicated that Complainant had previously alleged such a claim which was the subject of EEOC Appeal No. 0120140600, decided on December 4, 2014. The Agency then indicated that Complainant has a case that is currently pending a hearing before an EEOC Administrative Judge (AJ).
The Agency dismissed Complainant's pre-counseling request, concluding she was doing nothing more than attempting to re-file the same claims she had raised in previous occasions. As such, the Agency found it "wholly inappropriate" for Complainant to attempt to file a "new" complaint.
Complainant filed the instant appeal asserting that the Agency dismissed her pre-complaint without proper processing. Complainant argued that her prior complaint was erroneously dismissed. She indicated that she received new information regarding a decision from EEOC on a co-worker's EEO complaint and believed her complaint should have been decided in the same manner. She believed that she was targeted by the Agency and asks that the October 9, 2013 dismissal of Agency Complaint No. 6X-000-0038-14 should be reversed.
The Agency asked that the Commission find that, if Complainant was appealing the Agency's decision dated February 21, 2014, her appeal was untimely filed. To the extent Complainant alleged a new claim of discrimination, which was the subject of the Agency's letter dated March 10, 2015, the Agency argued that Complainant has abused the EEO complaint process and it will not revive Complainant's prior complaints which have been resolved. The Agency provided documents to supports its assertion that Complainant and her representative have abused the EEO complaint process by filling multiple, identical claims which have been clearly adjudicated.
ANALYSIS AND FINDINGS
Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. � 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed to through the pre-complaint process and dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing her formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. � 1614.107(a), once a formal complaint has been filed.
Moreover, when an agency dismisses a complaint under 29 C.F.R. � 1614.107(a), the Agency must issue a final decision. The final decision consists of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits. It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision.
As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal of the matter at hand and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. For purposes of timeliness, the Agency shall consider the date of contact to be February 19, 2015. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint.
A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) must be sent to the Compliance Officer as referenced below.
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 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 (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 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
March 1, 2016
__________________
Date
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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