01995526
04-23-2002
Rudy Rivers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rudy Rivers v. United States Postal Service
01995526
04-23-02
.
Rudy Rivers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995526
Agency No. 4F-945-0167-97
Hearing No. 370-98-2035X
DECISION
INTRODUCTION
Complainant timely initiated an appeal with the Equal Employment
Opportunity Commission (the Commission) from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII). The Commission hereby accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against him
based on race, sex and reprisal when he was issued a Letter of Warning.
BACKGROUND
Complainant was employed by the agency during the relevant time as a
Supervisor of Customer Services at the agency's Walnut Creek facility
in Oakland, California. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on May 30, 1997. He claimed that he had been discriminated
against based on his race (Black), sex (male) and reprisal (prior EEO
activity under Title VII) when, on March 24, 1997, he was issued a Letter
of Warning for Unacceptable Work Performance. The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, the agency issued a copy of its investigative report
and complainant was informed of his right to request a hearing before
an EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. Complainant requested a hearing with an AJ.
The AJ issued an order following the prehearing conference held on June
16, 1999, which remanded the complaint to the agency. The AJ noted that
complainant had been removed from the agency as of May 20, 1999, and
had appealed his removal to the Merit Systems Protection Board (MSPB).
She found that the Letter of Warning was �inextricably intertwined with
the removal action� and that the Commission did not have jurisdiction to
hear a case that had been appealed to the MSPB. She therefore returned
the case to the agency �for consideration as part of the complainant's
MSPB appeal.�
Complainant appealed the AJ's order to the Commission and argued that
his case was improperly sent back to the agency. He stated that his
EEO complaint pertained only to the Letter of Warning, which is not
appealable to the MSPB, and not to his removal. He requested that his
EEO complaint be reinstated and a hearing held.
The agency issued a FAD subsequent to complainant's appeal. In its
FAD, the agency characterized complainant's complaint as a mixed case
complaint. It found that the evidence showed that similarly situated
individuals had also received discipline for similar infractions.
The FAD further stated that the agency had articulated legitimate,
nondiscriminatory reasons for the issuance of the discipline, and that
the record did not support a finding of discrimination. The agency
requested that we affirm its FAD.
ANALYSIS AND FINDINGS
Complainant contended that he was improperly denied a hearing when the
AJ found that his complaint was �inextricably intertwined� with his
MSPB appeal regarding his removal from the agency. The MSPB does not
have jurisdiction over the issuance of a Letter of Warning, and will not
address it on appeal. See 5 C.F.R. � 1201. Additionally, we note that
the Letter of Warning was issued on March 24, 1997, and the removal action
was over two years later, on May 20, 1999. We therefore find that the
AJ improperly found the complaint to be �inextricably intertwined� with
complainant's MSPB appeal, and find that it should have been treated as
a non-mixed case. We further find that because complainant's complaint
was a non-mixed case and he had properly requested a hearing before an
AJ, the agency improperly issued a FAD on the merits of his complaint.
CONCLUSION
Accordingly, it is the decision of the Commission to VACATE the final
agency decision finding that the agency did not discriminate against
complainant, and to REMAND the case to the agency for further processing
in accordance with this decision and the proper regulations.
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_____04-23-02_____________
Date