[Redacted], Claud R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jul 20, 2021

Appeal No. 2020002043 (E.E.O.C. Jul. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claud R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020002043 Hearing No. 510-2020-00067X Agency No. 4G-335-0198-19 DECISION On January 25, 2020, Complainant filed a premature appeal from a January 8, 2020 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) decision dismissing his hearing request on his complaint of employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. While Complainant’s appeal was pending, the Agency issued a final action on February 14, 2020, stating it was implementing the AJ’s decision to procedurally dismiss Complainant’s complaint. This perfected Complainant’s appeal. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Clerk, PS-06, in Tampa, Florida. On July 10, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against when on or about April 13, 2019, and ongoing his mental disability was not accommodated, and on May 23, 2019, the Agency proposed putting him on enforced leave and issued a decision doing so effective August 16, 2019. 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. 2020002043 2 On September 13, 2019, Complainant also appealed the above decision letter to the Merit Systems Protection Board (MSPB). The MSPB characterized the issue before it, in part, as whether the Agency properly put Complainant on enforced leave and failed to reasonably accommodate his disability. On October 19, 2019, the Agency completed the investigation on Complainant’s July 10, 2019 EEO complaint. On November 20, 2019, the Agency issued a final Agency decision (FAD) finding no discrimination with appeal rights to the Merit Systems Protection Board (MSPB). Nevertheless, on November 29, 2019, Complainant requested a hearing before an EEOC AJ. Meanwhile, following a hearing before an MSPB AJ, on January 8, 2020, the MSPB issued an initial decision which became final on February 12, 2020, finding that the Agency discriminated against Complainant based on disability when it placed him on enforced leave for “alleged medical condition” rather than reasonably accommodate him by reassigning him to a position within his medical restrictions. The initial decision notified Complainant that after it became final, he had the right to request review of his discrimination claim with EEOC. The EEOC AJ dismissed Complainant’s request for a hearing on his EEO complaint because per 29 C.F.R. § 1614.107(a)(4), Complainant elected pursue the MSPB process, not the EEOC process. The February 14, 2020 final Agency action dismissed the complaint for the same reason and gave appeal rights to EEOC. The instant appeal followed. On appeal, Complainant argues that because the MSPB AJ advised he could file an appeal with the EEOC, the EEOC AJ incorrectly dismissed his request for a hearing for electing the MSPB process. In subsequent correspondence to EEOC’s Office of Federal Operations (OFO), Complainant writes that the Agency did not comply with the MSPB’s decision because it placed him in a job outside him limitations.2 He also contends that the Agency gave him a letter of demand to pay for health benefits he did not use from October 18, 2016 - March 29, 2019. On February 7, 2020, an attorney for the Agency filed a brief in opposition to Complainant’s appeal. However, the Agency’s argument was based on a misapprehension of what Complainant appealed. In its brief, the Agency argued Complainant does not have a right to appeal the November 10, 2019 FAD because it properly gave appeal rights to the MSPB, not the EEOC. In his February 24, 2020 appeal brief, however, Complainant clarifies that he is appealing the EEOC AJ’s dismissal of his request for a hearing, and by implication the connected FAD dismissing his EEO complaint. 2 Complainant also alleged this in a petition for enforcement to the MSPB. On July 31, 2020, the MSPB issued an initial decision granting Complainant’s petition for enforcement on this job outside his medical limitations matter, and ordered related relief. 2020002043 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(4) states that where the complainant has raised a 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, the EEO complaint is subject to dismissal. An aggrieved person may elect to initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. §1614.302(b). Where a Complainant nevertheless pursues his claim in both forums, the adjudication of the case on the merits by the MSPB is deemed tantamount to an election of remedies. Guirguess v. USPS, EEOC Appeal No. 01A11485 (Sep. 7, 2001). This is what occurred here. The MSPB ruled in Complainant’s favor. CONCLUSION Accordingly, the Agency’s February 14, 2020 final action dismissing Complainant’s EEO complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2020002043 4 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from 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. If you file a request to reconsider and also file a civil action, 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. 2020002043 5 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 July 20, 2021 Date