0120091161
06-04-2009
Eric M. Mason, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eric M. Mason,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091161
Agency Nos. 1J-461-0060-08 & 1J-461-0083-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decisions dated December 10, 2008, dismissing his complaint of
unlawful 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that complainant's complaint was improperly dismissed pursuant to
29 C.F.R. � 1614.107(a)(2).
During the pertinent period, complainant was a mail handler at an Indiana
center of the agency. On July 18, 2008, complainant initiated contact
with an EEO Counselor alleging that the agency discriminated against him
on the bases of race (African-American), disability (neck injury), and
reprisal for prior protected EEO activity when the agency (1) issued him
a Notice of Proposed Removal on June 3, 2008, (2) issued him a 14-day
suspension on June 1, 2008, and (3) on July 11, 2008, placed him in
no pay status. Subsequently, complainant filed a formal EEO complaint
reiterating the same.
In a letter dated September 18, 2008, the agency accepted (2) and (3) for
investigation and dismissed (1) pursuant to 29 C.F.R. � 1614.107(a)(5),
as a proposal to take a personnel action. Then, on December 4, 2008,
the agency informed complainant that it accepted (1) and (3) for mixed
case processing under agency number 1J-461-0083-081 and still accepted (2)
as a non-mixed matter under 1J-461-0060-08. Six days later, on December
10, the agency rescinded its acceptance of (1) and (2). Specifically,
the agency dismissed both for untimely EEO contact, stating that, for
(1), complainant did not raise the fact that he was actually removed until
November 2008 in an EEO affidavit and, for (2), complainant received the
suspension in August 2007 although he did not serve it until June 1, 2008.
The agency stated that complainant's initial EEO contact on July 18, 2008
was outside of the statutory time-frame in both instances. The instant
appeal from complainant followed. On appeal, complainant stated that
his leave cited as the basis of his removal was related to the Family &
Medical Leave Act and a worker's compensation claim and, in 2007, he
was not informed of the date he would serve his 14-day suspension.
We disagree with the December 10 final agency decisions. First, regarding
(1), we note that when a complaint is filed on a proposed action and the
agency subsequently proceeds with the action, the action is considered
to have merged with the proposal. See Siegel v. Dep't of Veterans
Affairs, EEOC Request No. 05960568 (October 9, 1997). Next, as to (2),
we find that complainant initiated EEO contact within 45 days of the
effective date of his suspension action, as is required by 29 C.F.R. �
1614.105(a)(1). Accordingly, we REVERSE the agency's final decisions
dismissing complainant's claims and REMAND the matters to the agency
for processing consistent with this decision and the Order below.
ORDER (E0408)
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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
June 4, 2009
__________________
Date
1 We note that the agency upheld the proposed removal in a Letter of
Decision dated July 7, 2008, with an effective date of July 11.
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0120091161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091161