0120092699
03-24-2011
Charles Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Charles Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092699
Agency No. 4F-940-0074-09
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 5, 2009, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisor at the Agency's Processing and Distribution Center facility
in San Francisco, California. The record indicates that Complainant
worked with the Agency until he took a disability retirement effective
December 31, 2004. Subsequently, in 2006, Complainant returned from his
disability retirement from the Agency. However, Complainant felt he was
unable to work in his work environment. By letter dated December 13,
2007, Complainant was issued a letter directing him to return to work
from his continued absences.
On February 22, 2008, Complainant filed a petition with the Merit
Systems Protection Board (MSPB or Board), alleging that the Agency
failed to provide him with a reasonable accommodation and as a result,
he was constructively suspended after December 21, 2007. On November
25, 2008, the MSPB Administrative Judge (MSPB AJ) issued his initial
decision finding that the Board lacked jurisdiction over Complainant's
claim of discrimination.
On February 2, 2009, an EEO Services Analyst sent Complainant a letter
informing him that since the MSPB denied jurisdiction over his appeal,
the matter was no longer considered mixed. Therefore, if Complainant
wanted to pursue the matter through the EEO process, he needed to contact
an EEO Counselor within 45 days of receipt of the letter.
On March 16, 2009, Complainant contacted an EEO Counselor to pursue his
claim of denial of reasonable accommodation and the December 2007 letter
requiring him to return to work. The record indicated that Complainant
informed the EEO Counselor that the matter was previously raised with the
MSBP. When the matter could not be resolved informally, Complainant was
issued a notice of right to file a formal complaint. On April 12, 2009,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of disability (depression/anxiety)
and reprisal for prior protected EEO activity under Section 501 of the
Rehabilitation Act of 1973 when, since December 21, 2007, Complainant
has been denied reasonable accommodation and not been returned to duty.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
for raising the same matter before the MSPB. Complainant appealed noting
that he filed an appeal with MSPB; however, the matter was dismissed.
Pursuant to the Agency's notification, Complainant contacted the Agency's
EEO Counselor to pursue the matter with the EEO Office. Therefore,
Complainant claimed that the Agency's dismissal should be rejected.
The Agency requested that the Commission affirm its dismissal action.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the Agency improperly dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(4). We note that an
aggrieved person may initially file a mixed case complaint with an agency
or may file a mixed case appeal directly with the Merit Systems Protection
Board (MSPB), pursuant to 5 C.F.R. � 1201.151, but not both. See 29
C.F.R. � 1614.302(b). EEOC Regulation 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.
The record reveals that Complainant elected to proceed with the MSPB
regarding his denial of reasonable accommodation and not returned to work.
Given that the MSPB dismissed the matter for lack of jurisdiction,
the EEO Specialist Analyst properly notified Complainant that he could
continue to process his claim of disability discrimination as an unmixed
matter in accordance with 29 C.F.R. � 1614.302(c)(2)(ii), using the date
complainant filed the MSPB appeal for timeliness purposes. However,
rather than processing the matter as noted in the Agency's letter dated
February 2, 2009; the Agency dismissed the matter pursuant to 29 C.F.R. �
1614.107(a)(4). Therefore, we find that the Agency's dismissal was not
appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the Agency's
final decision and REMAND the matter for further processing in accordance
with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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 (M0610)
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 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
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 24, 2011
__________________
Date
2
0120092699
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092699