0120101084
06-17-2010
Nathaniel Anderson, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Nathaniel Anderson, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101084
Hearing No. 450-2009-00296X
Agency No. 4G-752-0350-08
DECISION
On February 6, 2010, Complainant filed an appeal from the Agency's January
1, 2010 final order concerning his equal employment opportunity (EEO)
complaint alleging 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission REVERSES the
Agency's final order.
BACKGROUND
In a complaint dated September 22, 2008, Complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
national origin (not identified), sex (male), religion (Christian), color
(Black), disability (back, diabetes), age (45), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when: (1) on May 19, 2008, he was harassed when he was placed off the
clock after an alleged confrontation with the Postmaster; (2) on July 11,
2008, he was issued a proposed letter of removal, and on August 4, 2008,
he was issued a final letter of removal; and (3) since October 1998,
he has been subjected to a hostile work environment.
The Agency issued a dismissal of claims 1 and 2, pursuant to 29 C.F.R. �
1614.107(a)(4), because Complainant filed earlier appeals on these
matters with the Merit Systems Protection Board (MSPB). Complainant
appealed the dismissal.
In Anderson, Jr. v. U.S. Postal Service, EEOC Appeal No. 0120090273
(January 30, 2009), we determined that complainant's appeals to the
MSPB were filed prior to his EEO complaint. Therefore, EEOC Appeal
No. 0120090273 affirmed the dismissal of claim (2). However, we found
that on August 22, 2008, the MSPB issued a decision finding that it lacked
jurisdiction over claim 1. As such the Commission found claim (1) was no
longer "mixed" and could be processed as an EEO complaint. Therefore,
EEOC Appeal No. 0120090273 redefined Complainant's EEO complaint as a
claim of ongoing discriminatory harassment beginning in October 1998
and culminating in the event which occurred on May 19, 2008 (claim 1).
As redefined, the EEO complaint was remanded to the Agency for further
processing.
On remand, the Agency investigated the claim of harassment (October
1998 through May 19, 2008). At the conclusion of the investigation,
Complainant was provided a copy of the investigative file and requested
a hearing before an EEOC Administrative Judge (AJ).
Before the AJ, the Agency moved for dismissal of the complaint, again
arguing that Complainant had raised his claim before the MSPB. It is
not clear from the record whether or not the Agency informed the AJ
that this same argument had been rejected already by the Commission in
the earlier appeal. On December 1, 2009, the AJ dismissed the matter
finding that Complainant had elected to raise his claims with the MSPB.
The AJ ordered the Agency to issue a final order either implementing or
rejecting her dismissal decision.
Rather than dismissing the matter, the Agency issued a decision on
the merits of the case. The Agency found that Complainant failed to
establish his claims of harassment and disparate treatment.
CONTENTIONS ON APPEAL
Complainant appealed. Complainant failed to make any specific argument
on appeal. He only provided a copy of the AJ's decision dismissing the
matter and a copy of an arbitration decision regarding the Agency's
removal action. The Agency requests that the Commission affirm its
finding of no discrimination.
ANALYSIS AND FINDINGS
A review of the record shows that the AJ dismissed the matter pursuant
to 29 C.F.R. � 1614.107(a)(4). A mixed case complaint is a complaint
of employment discrimination filed with a federal agency, related
to or stemming from an action that can be appealed to the MSPB. 29
C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a
mixed case complaint with an agency or may file a mixed case appeal
directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both.
29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an
agency shall dismiss a complaint where the Complainant has raised the
matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that
the Complainant has elected to pursue the non - EEO process.
We note that the Commission previously reviewed the issue of the
appropriateness of dismissal of the complaint under 29 C.F.R. �
1614.107(a)(4). As noted above, the decision in EEOC Appeal 0120090273
determined that the MSPB denied jurisdiction over Complainant's claim
of harassment beginning in October 1998 and culminating in the event
which occurred on May 19, 2008. As such, 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). Thus, the claim of harassment was
considered a "non-mixed" matter and remanded to the Agency to be processed
as an EEO complaint. See generally Schmitt v. Dept. of Transp., EEOC
Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC
Request No. 05900883 (October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i)
and (ii).
A review of the record shows that Complainant again raised the August
2008 removal action.1 This claim was dismissed by the Agency, which
was affirmed in EEOC Appeal 0120090273. However, the remaining claim
of harassment from October 1998 through May 2008 was dismissed by the
MSPB for lack of jurisdiction. As the Commission has previously found,
this claim is no longer considered mixed. Accordingly, we find that
the AJ's dismissal of the matter pursuant to 29 C.F.R. � 1614.107(a)(4)
to be inappropriate. As such, we find that the matter should be remanded
back to the AJ for further processing.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's
arguments on appeal, the Agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission VACATES the
Agency's final action and REMANDS the matter to the Agency in accordance
with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The Agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has 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 (K1208)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 17, 2010
__________________
Date
1 The record includes a copy of the MSPB's Initial Decision regarding
Complainant's removal action. The MSPB stated it has jurisdiction
over the removal action, but Complainant withdrew his appeal in favor
of an arbitration process. As such, the MSPB dismissed the appeal of
the removal action.
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0120101084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101084