[Redacted], Nicki B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2021000071 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000071 Agency No. 4C170006220 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's August 26, 2020 dismissal of his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant, the Postmaster, EAS-18, at the Fredericksburg Post Office, located in Fredericksburg, Pennsylvania, was on a detail as an Acting Manager, Customer Service, EAS-20, at the Wilkes-Barre Post Office, in Wilkes-Barre, Pennsylvania. On August 10, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black/Asian), national origin (Trinidadian), and color 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. 2021000071 2 (Black) when, following a Notice of Proposed Removal and Letter of Decision, Complainant was removed from employment for improper conduct effective June 13, 2020.2 On August 26, 2020, Complainant received the Letter of Decision on his June 13, 2020 removal, which had been delayed due to multiple address changes. The Letter explained that he could appeal his removal with the MSPB, or raise the matter in an EEO Complaint. Complainant had already raised the matter in the instant EEO Complaint, which was still pending an investigation. He notified his EEO Counselor that he wanted to appeal his removal with the MSPB “through” the EEO. The EEO Counselor provided Complainant with the relevant regulations and explained that appealing to the MSPB is separate from the EEO process, so Complainant must choose either continuing his complaint through the EEO process, or appealing his removal with the MSPB, but not both. Complainant responded, “I am going to file a mixed case directly with the merit service [system] protection board.” The Agency issued a FAD that day. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(4), as Complainant stated his intent to pursue the same claim with the Merit System Protection Board (“MSPB”). ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.107(a)(4) 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. A complainant’s election of forums is irrevocable, including instances where the complainant chooses to file a mixed complaint with the MSPB rather than file an EEO complaint. See Savage v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A14310 (Dec. 4, 2002) (complainant’s decision to pursue a mixed complaint with the MSPB precluded an EEO complaint on the same claims, even after he withdrew his MSPB). However, it is the Agency’s burden to provide evidence or proof to substantiate its final decision. See Marshall v.Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). In Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan. 31, 1992). 2 Complainant’s Formal Complaint originally alleged that on March 3, 2020, he was issued a Notice of Proposed Removal (“NOPR”). When a complaint is filed on a proposed action and the agency proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep’t of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997), Charles v. Dep’t of the Treas., EEOC Request No. 05910190 (Feb. 25, 1991). Here, the Agency proceeded with the proposed action on June 10, 2020, when it issued a Letter of Decision notifying Complainant that it would remove him from employment effective June 13, 2020. Upon the effective date of Complainant’s removal, the previously proposed actions (NOPR and Letter of Decision) merged with the final action (removal) to comprise one complaint of removal. 2021000071 3 Although the Agency provided a written statement from Complainant that he would pursue his allegation in an appeal to the MSPB, no evidence was submitted to establish that this was actually done.3 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The matter is hereby REMANDED for further processing in accordance with the following ORDER. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 3 We take administrative notice that, when contacted, the MSPB had no record of an appeal filed under Complainant’s name. 2021000071 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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. 2021000071 5 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 (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. 2021000071 6 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 January 25, 2021 Date