0320160031
04-14-2016
Gilda M.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service, (Pacific Area), Petition No. 0320160031 MSPB No. SF-0353-15-0371-I-1
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gilda M.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
(Pacific Area),
Petition No. 0320160031
MSPB No. SF-0353-15-0371-I-1
DECISION
On March 25, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB). For the following reasons, we DENY Petitioner's petition for review.
BACKGROUND
Petitioner worked as a Customer Care Agent at the Agency's Los Angeles Call Center in Los Angeles, California. Petitioner claimed that she could not endure customer calls pertaining to Agency employees or postal inspections because it caused her undue stress and that these types of calls were about 95% of the calls she had to field. Petitioner alleged that the Agency denied her restoration rights when it determined that it had no work within her restrictions and sent her home on October 10, 2014. Petitioner applied for leave under the Family and Medical Leave Act on October 9, 2014, and reported back to work on March 2, 2015.
Petitioner filed an appeal with the MSPB on February 28, 2015, alleging that the Agency improperly failed to restore her following her partial recovery from a compensable injury.2 Petitioner requested a hearing, which was held on October 7, 2015. The MSPB Administrative Judge (AJ) issued an Initial Decision dismissing the appeal for lack of Board jurisdiction on October 14, 2015. The AJ found that Petitioner did not show that she suffered from an emotional condition that was accepted as job-related by the Office of Workers' Compensation Programs (OWCP) or that she was receiving medical monetary benefits for it.3 Since Petitioner had not shown that she had a compensable injury, she had not shown that she is an employee with restoration rights and did not meet the jurisdictional requirements for filing a restoration appeal. Additionally, the AJ noted that Petitioner raised claims of disability and age discrimination but absent a finding of Board jurisdiction, the Board lacks authority to adjudicate such claims. Accordingly, the AJ dismissed Petitioner's appeal.
Petitioner then filed a petition for review with the MSPB. The MSPB denied the petition for review and affirmed the initial decision in its Final Order on March 22, 2016. The MSPB stated that in order to establish jurisdiction, Petitioner must show by preponderant evidence that: (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of her; (3) the Agency denied her request for restoration and; (4) the Agency's denial was arbitrary and capricious. The MSPB agreed with the AJ that Petitioner was not absent from her position due to a compensable injury and concluded that she did not establish Board jurisdiction.
Petitioner then filed the instant petition with the Commission on March 26, 2016. In her petition, Petitioner argues that the MSPB committed an error of law when it dismissed her appeal.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a), because the MSPB did not address any matters within the Commission's jurisdiction. Therefore, the Commission finds that it has no jurisdiction to review Petitioner's petition. This matter will be considered a "non-mixed" case and processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner's request for review is DENIED and Petition No. 0320160031 is hereby administratively closed. MSPB No. SF-0353-15-0371-I-1 is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process her allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall notify Petitioner of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R � 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor.
A copy of the notification shall be provided to the Compliance Officer listed 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. 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.
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
__4/14/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 When an individual partially recovers from a compensable injury and is able to return to limited duty, an agency must make every effort to restore the individual in the local commuting area. 5 C.F.R. �353.301(d).
3 The AJ noted that Petitioner received OWCP benefits for other conditions but that she does not contend that her absences were caused by those other conditions.
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0320160031