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.