Mathew R.,1 Petitioner,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJan 28, 2016
0320160014 (E.E.O.C. Jan. 28, 2016)

0320160014

01-28-2016

Mathew R.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Mathew R.,1

Petitioner,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Petition No. 0320160014

MSPB No. PH-0752-14-0592-B-1

DECISION

On December 9, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission seeking review of the Final Decision issued by the Merit Systems Protection Board (MSPB) regarding MSPB No. PH-752-14-0592-B-1. For the reasons that follow, we DENY consideration of Petitioner's petition and REMAND this matter to the Agency for further processing.

BACKGROUND

Petitioner worked as a Supervisor, Customer Services at the Agency's Jeannette Post Office facility in Jeannette, Pennsylvania. Petitioner alleged that the Agency discriminated against him on the bases of disability (herniated discs, neuropathy in feet, high blood pressure, diabetes and arthritis of the hands) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on March 11, 2013, he was forced to retire.

Petitioner filed a formal EEO complaint on May 28, 2013, and the Agency issued a final decision on February 10, 2014. The Agency found that the evidence did not support unlawful employment discrimination.

Petitioner filed an appeal with the MSPB on March 10, 2014. On May 5, 2014, the MSPB issued a jurisdictional order notifying Petitioner of his need to file evidence and/or arguments alleging jurisdiction. The Petitioner did not file a response and the Agency filed a supplemental motion to dismiss the appeal for lack of jurisdiction.

The MSPB issued an initial decision on July 10, 2014, dismissing the appeal for lack of jurisdiction. The Petitioner filed a petition for review and on February 24, 2015, the MSPB issued an order remanding Petitioner's case for further adjudication of his involuntary disability retirement claim and to receive jurisdictional notice for his separate Veterans Employment Opportunity Act (VEOA) claim. The MSPB noted that Petitioner appeared to be claiming that his involuntary disability retirement was actually a constructive removal that was a result of whistleblower retaliation. The Agency responded on May 26, 2015, and the Petitioner submitted his response on June 29, 2015.

An MSPB Administrative Judge (AJ) issued an initial decision on October 30, 2015. The AJ dismissed Petitioner's appeal for lack of jurisdiction, without a hearing, and found that Petitioner's VEOA claim was untimely. In regards to Petitioner's claim that his retirement was involuntary, the AJ held that Petitioner had not provided nonfrivolous allegations of fact which, if proven, could establish a prima facie case the MSPB has jurisdiction over. Specifically, the AJ found that the Petitioner had not shown that the Agency caused or exacerbated his disability that forced him to retire or effectively imposed the terms of his retirement; that he had no realistic alternatives but to retire or; that his retirement was the result of improper Agency actions.

The AJ addressed Petitioner's whistleblower allegations for the limited purpose of determining whether those claims supported his allegation of coercion. Since Petitioner did not retire until five months after making his whistleblower disclosures, the AJ determined that he had not shown that he was subject to working conditions so intolerable that a reasonable person in his position would have felt compelled to retire. Accordingly, the AJ dismissed Petitioner's claim that his retirement was coerced.

The AJ also dismissed Petitioner's VEOA claim for being untimely. The Department of Labor issued its decision on Petitioner's complaint on October 28, 2011, and Petitioner waited 28 months before filing his appeal with the MSPB. The AJ found that equitable tolling was not available in this case because Petitioner did not show that he was diligent in pursing his rights under the VEOA.

The MSPB Initial Decision became final on December 4, 2015, and Petitioner filed the instant petition with the Commission on December 19, 2015.

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. 0320160014 is hereby administratively closed. MSPB Docket No. PH-752-14-0592-B-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) that the Agency, if it has not already done so, is required to process his involuntary disability retirement allegation pursuant to 29 C.F.R. � 1614.108(f). Within 30 calendar days of its receipt of this decision, the Agency shall notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claim pursuant to 29 C.F.R. � 1614.110. 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

__1/28/16________________

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.

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0320160014