0120182120
09-13-2018
Leora R,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leora R,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120182120
Hearing No. 450-2016-00307X
Agency No. 4G-752-0105-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 29, 2018, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's Processing and Distribution Center in Dallas, Texas.
In 2012, Complainant had applied for a disability retirement. However, rather than accepting the disability retirement, Complainant opted for benefits under the Federal Employees' Compensation Act (FECA). Subsequently, on December 31, 2014, the Agency issued Complainant a modified position offer. Complainant asserted that the position was not within her medical limitations. On July 22, 2015, Complainant was informed that the Agency could not provide her with a reasonable accommodation. Subsequently, on December 21, 2015, the Agency's District Reasonable Accommodation Committee (DRAC) issued its decision denying Complainant's request for a reasonable accommodation. The DRAC determined that there was no work within Complainant's medical limitations. The Agency upheld the DRAC's decision on January 4, 2016.
On March 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic), disability, age (57), and reprisal for prior protected EEO activity when, on January 4, 2016, she received a letter upholding the District Reasonable Accommodation Committee's decision of December 21, 2015, to deny her request for reasonable accommodation. The record indicated that Complainant had sought a position within her medical limitations. However, the Agency indicated it was unable to locate a vacant funded position to which Complainant could have been reassigned.
The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 9,2018, the AJ issued a decision dismissing the complaint, finding that the Commission lacked jurisdiction. The AJ noted that Complainant had filed a mixed case appeal with the Merit Systems Protection Board (MSPB) on June 1, 2015. On April 25, 2016, the MSPB AJ issued a decision finding that Complainant failed to prove that she was denied her restoration rights when the Agency was unable to provide her with a reasonable accommodation. The EEOC AJ held that rather than appealing the MSPB AJ decision, Complainant filed a request for an EEOC hearing. As such, the AJ concluded that the matter had already been before and decided by the MSPB, and the Commission lacked jurisdiction.
The Agency implemented the AJ's dismissal. Complainant appealed. Her representative asserted that the EEOC AJ's decision was not appropriate. Specifically, he asserted that the matter before the AJ was Complainant's claim that the Agency failed to provide Complainant with a reasonable accommodation. The Representative argued that the MSPB does not have jurisdiction over the issue raised in Complainant's formal EEO complaint. The Representative argued that the EEO complaint was not a mixed case complaint and the matter should be remanded back to the EEOC AJ.
The Agency responded to the appeal arguing that the MSPB AJ rendered a decision that Complainant failed to prove her restoration claim in an initial decision dated April 25, 2016, which became final on May 30, 2016. Rather than appealing the MSPB AJ decision, the Agency argued that Complainant requested a hearing before the EEOC AJ. The Agency requests that the Commission affirm the AJ's decision dismissing the complaint at hand.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.301(a)(1) defines a mixed case complaint as a complaint of discrimination filed with an agency based on discrimination related to or stemming from an action that can be appealed to the MSPB. EEOC Regulation 29 C.F.R. � 1614.301(a)(2) provides that a mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination. EEOC Regulation 29 C.F.R. � 1614.301(b) provides further that an aggrieved individual may file a mixed case complaint with the agency or a mixed case appeal with the MSPB, but not both. We have also noted that Complainant's subsequent withdrawal of the discrimination issues in the MSPB appeal did not negate the prior election. See Turner v. Dep't of Defense, EEOC Appeal No. 01986592 (June 29, 2001).
A review of the record indicates that on June 1, 2015, Complainant filed an appeal with the MSPB regarding her claim that the Agency violated her restoration rights after she partially recovered from her medical condition. In her initial appeal with the MSPB, she alleged the affirmative defenses of disability discrimination and denial of reasonable accommodation. The MSPB AJ held a hearing on January 20, 2016. At that time, Complainant withdrew her defense of disability discrimination.
The MSPB AJ found that Complainant failed to show that she was denied her restoration rights. In making the finding, the MSPB AJ noted that Complainant withdrew her claim of disability based discrimination. However, the MSPB AJ addressed the issue of whether Complainant demonstrated that the Agency failed to provide her with a reasonable accommodation. The MSPB AJ held that even if Complainant had not waived her defense, Complainant did not allege that there were positions available to which she could have been reassigned with or without reasonable accommodation. The MSPB AJ determined that Complainant was unable to perform the position she was offered in December 2014. Therefore, the MSPB AJ found that by July 2015, there was no position to which Complainant could have been reassigned.
However, the instant EEO complaint involved Complainant's request for a reasonable accommodation before the DRAC in December 2015. Subsequent to the events alleged before the MSPB, Complainant went before the DRAC requesting a position to which she could be reassigned. The DRAC issued a decision in December 2015 which was upheld in January 2016. As such, we determine that the instant EEO complaint involved the events that occurred after the events raised before the MSPB AJ. Accordingly, we find that these events are separate from the events raised before the MSPB AJ and the EEOC AJ's dismissal of the complaint was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action and REMAND the matter in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Dallas District Office a request for a hearing on the remanded complaint, along with a copy of this decision, within 30 calendar days of the date of this decision. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 30 calendar days of the date this decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
September 13, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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