0320160062
08-29-2016
Towanda B.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Towanda B.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Petition No. 0320160062
MSPB No. SF-0752-16-0008-I-1
DENIAL OF CONSIDERATION
On August 18, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB).
On October 3, 2015, Petitioner filed a mixed case appeal alleging that the Agency discriminated against her when, since June 9, 2015, it improperly failed to restore her following her partial recovery from a compensable injury. On December 23, 2015, an MSPB Administrative Judge (MSPB AJ) issued an initial decision dismissing Petitioner's appeal for lack of jurisdiction. Specifically, the MSPB AJ found that Petitioner did not make a nonfrivolous allegation that her compensable injury was the sole cause of her termination. The MSPB AJ did not give Petitioner further review rights by the Commission. Subsequently, Petitioner sought review by the Board. On July 29, 2016, the Board issued a final order denying the petition for review and affirming the MSPB AJ's initial decision. The Board did not give Petitioner further review rights by the Commission. Petitioner then filed the instant petition.
When the MSPB denies jurisdiction in such matters, 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 case will be considered a "non-mixed" matter and processed accordingly. See generally 29 C.F.R. � 1614.302(b); Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). Here, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her when it improperly failed to restore her following her partial recovery from a compensable injury. The MSPB, however, dismissed Petitioner's mixed case appeal for lack of jurisdiction. Accordingly, Petition No. 0320160062 is hereby administratively closed, and the matter 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 is required to process her allegations of discrimination as a "non-mixed" matter pursuant to
29 C.F.R. � 1614.105 et seq. The Agency shall promptly notify Petitioner in writing of the right to contact an EEO Counselor within forty five (45) days of receipt of the notice and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which Petitioner filed her appeal with the MSPB shall be deemed to be the date of initial contact with an EEO Counselor.2
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
_8/29/16_________________
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.
2 On January 13, 2016, the Agency accepted Petitioner's December 14, 2015, EEO complaint (Agency No. 1F-927-0108-15) alleging that it discriminated against her when: (1) on June 9, 2015 and ongoing, it denied her a reasonable accommodation; and (2) on June 9, 2015, it took her badge and escorted her out of the building, and has not allowed her to return to work. It was not clear from the record whether these claims involved the matters at issue in Petitioner's MSPB appeal at issue in this decision.
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