John W. Lynch, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00458 (E.E.O.C. Apr. 24, 2000)

01a00458

04-24-2000

John W. Lynch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John W. Lynch, )

Complainant, )

)

v. ) Appeal No. 01A00458

) Agency No. 4E-852-0093-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Based on a review of the record, we find that the agency improperly

dismissed the instant complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1) and (4)).<1> Complainant

alleged that he was subjected to discrimination on the bases of race

(Black), color (Black), sex (male), age (D.O.B. 2-24-34) , and physical

disability (right knee, shoulder, and back) when:

(1) on March 17, 1999, he was notified that no reasonable accommodation

was available for him; and

(2) on July 3, 1999, he was removed from the Postal Service.

By final agency decision (FAD) dated September 3, 1999, the agency

dismissed both claims raised in the complaint. The FAD dismissed

claim (1) on the ground that the same issue was accepted in agency case

no. 4E-852-1140-96 previously filed by complainant.<2> The FAD dismissed

claim (2) on the ground that it was the subject of a mixed case appeal

pending before the Merit Systems Protection Board (MSPB). The record

reveals that complainant received the FAD on September 8, 1999, and filed

his notice of appeal with this Commission on October 18, 1999, beyond the

thirty (30) day time limit set forth in 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.402).

On appeal, complainant contends that the untimely filing of his appeal

should be excused because upon receipt of the FAD he contacted the EEO

counselor to inquire about information regarding mixed case complaints,

and the EEO counselor could not promptly provide the answers to his

questions, causing delay in his determination regarding how to proceed.

We note that the FAD provided unclear appeal rights, stating on the one

hand that the decision was appealable only to the MSPB, not the EEOC,

and then stating that "alternatively," the decision was appealable to

the EEOC. The FAD failed to clarify that the dismissal of issue (1)

was subject to appeal to the EEOC and the dismissal of issue (2) was

appealable to 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 as timely filed.

The record reveals that complainant filed a mixed case appeal with the

MSPB on July 26, 1997, one day before filing the instant complaint on

July 27, 1997. Inasmuch as it appears that both of the issues raised

in the instant complaint are encompassed in complainant's mixed case

appeal filed with the MSPB, complainant made an election to proceed in

that forum, and both issues should have been held in abeyance pursuant

to EEOC Regulation 29 C.F.R. � 1614.302(c)(2)(ii), which provides:

Where the agency or the MSPB administrative judge questions the MSPB's

jurisdiction over the appeal on the same matter, the agency shall hold

the mixed case complaint in abeyance until the MSPB's administrative judge

rules on the jurisdictional issue, notify the complainant that it is doing

so and instruct him or her to bring the allegation of discrimination

to the attention of the MSPB . . . If the MSPB's administrative judge

finds that the MSPB has jurisdiction over the matter, the agency shall

dismiss the mixed case complaint . . . and advise the complainant of

the right to petition to the EEOC to review the MSPB's final decision

on the discrimination issue.

Accordingly, we find that the agency's final decision to dismiss the

complaint was improper pursuant to EEOC Regulation 29 C.F.R. � 107(a),

and is hereby VACATED, and the complaint is REMANDED for the agency to

hold the complaint in abeyance pending the MSPB's determination of the

jurisdictional issue, in accordance with the following ORDER.

ORDER

Pursuant to EEOC Regulation 29 C.F.R. � 1614.302(c)(2)(ii), the

agency shall hold complainant's complaint in abeyance until the MSPB's

administrative judge rules on the jurisdictional issue, shall notify

complainant that it is doing so, and shall instruct complainant to bring

the claims of discrimination to the attention of the MSPB. If the MSPB's

administrative judge finds that the MSPB has jurisdiction over the one

or both issues, the agency shall dismiss that portion of the mixed case

complaint over which the MSPB has exercised jurisdiction, and advise

complainant of the right to petition the EEOC to review the MSPB's final

decision on the discrimination issue(s). If the MSPB administrative

judge finds that the MSPB does not have jurisdiction over the matter,

the agency shall recommence processing of the mixed case complaint as

a non-mixed EEO complaint.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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

19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

April 24, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________________________

Equal Employment Assistant Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The FAD further noted that claim (1) was the subject of a civil action

filed by complainant in United States District Court.