01993133
10-03-2001
Calvin E. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Allegheny Area), Agency.
Calvin E. Jackson v. United States Postal Service
01993133
October 3, 2001
.
Calvin E. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01993133
Agency No. 1C-441-0142-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of 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.<1> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged that he was
discriminated against based on disability (alcoholism) when, on February
12, 1998, he was issued a notice of proposed removal, and subsequently,
via an April 15, 1998 letter of decision, was removed from employment
effective April 18, 1998.
By letter dated August 12, 1998, complainant was advised by the agency
EEO Counselor that because he had a veteran's preference, he was eligible
to file with the Merit Systems Protection Board (MSPB), if he so elected,
or to file a formal EEO complaint with the agency. Complainant elected
to file an EEO complaint with the agency, and by letter of acceptance
dated August 31, 1998, the agency did not identify the complaint as
a mixed case complaint, and erroneously stated that following a final
agency decision, complainant could file an appeal with this Commission.
See Record of Investigation (ROI) at 15. Subsequently, at the time the
agency issued complainant a copy of the ROI, he was advised by a �Notice
of Completed Investigation� that if he was dissatisfied with the agency's
FAD, he could appeal to the MSPB, the address of which was provided.
By FAD issued February 22, 1999, the agency found no discrimination.
The FAD included a notice of rights entitled �Complainant's Appeal
Rights in a Mixed Case Complaint� which advised complainant of his right
to appeal to �the [MSPB], not the EEOC, within 30 calendar days,� and
provided the MSPB regional mailing address. However, it appears that the
FAD enclosed EEOC Form 573, which is captioned �Notice of Appeal/Petition
to the Equal Employment Opportunity Commission (Office of Federal
Operations).� Complainant then completed the Form 573 and filed it with
the Office of Federal Operations, thus initiating the instant appeal.
EEOC Regulation 29 C.F.R. 1614.302(d)(3) provides: �At the time that
the agency issues its final decision on a mixed case complaint, the
agency shall advise the complainant of the right to appeal the matter
to the MSPB (not EEOC) within 30 days of receipt and of the right to
file a civil action as provided at 1614.310(a).�
Based on the foregoing procedural history, we find that complainant
received unclear appeal rights, inasmuch as the agency's letter
accepting his formal complaint advised him that he could appeal any
subsequently-issued FAD to the EEOC, and further, the FAD, while noting
that appeal could only be taken to the MSPB, provided complainant with
a Form 573, which apparently led him to file the instant appeal with
the EEOC rather than the MSPB. Accordingly, we find that the FAD is
sufficiently unclear regarding complainant's appeal rights to warrant
exercising our discretion to accept the appeal. Cf. Lynch v. United
States Postal Service, EEOC Appeal No. 01A00458 (April 24, 2000).
Nevertheless, we find that this case is not properly before the Commission
at this time.<2> See Kryfka v. Department of Transportation, EEOC Appeal
No. 01970060 (May 18, 1999); Llabres v. Department of Transportation,
EEOC Appeal No. 01944908 (December 1, 1995), request to reconsider denied,
EEOC Request No. 05960255 (November 13, 1997). Pursuant to 29 C.F.R. �
1614.302(d)(3), complainant should have appealed to the MSPB, but in
light of the unclear appeal rights he was given, we hereby VACATE the
FAD and REMAND the complaint for issuance of a new FAD with appropriate
appeal rights, in accordance with this decision and the following ORDER.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new final decision with appropriate appeal
rights to the Merit Systems Protection Board, in accordance with EEOC
Regulation 29 C.F.R. 1614.302(d)(3), and not enclosing EEOC Form 573.<3>
The agency shall submit a copy of the re-issued final decision to the
EEOC Compliance Officer as listed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (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 3, 2001
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2EEOC Regulation 29 C.F.R. 1614.303(a) provides: �Individuals who have
received a final decision from the MSPB on ... the appeal of a final
decision on a mixed case complaint under 5 C.F.R. 1201, subpart E and
5 U.S.C. 7702 may petition EEOC to consider that decision.�
3If the agency chooses to enclose an appeal form, it may enclose MSPB
Optional Form 283 (�U.S. Merit Systems Protection Board Appeal Form�).