Donna L. Hammond, Petitioner,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionMar 1, 2012
0320120017 (E.E.O.C. Mar. 1, 2012)

0320120017

03-01-2012

Donna L. Hammond, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.




Donna L. Hammond,

Petitioner,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Petition No. 0320120017

MSPB No. PH-0353-11-0395-I-1

DENIAL OF CONSIDERATION

Petitioner filed a petition with the Equal Employment Opportunity

Commission (EEOC) asking for review of a Final Order issued by the Merit

Systems Protection Board (MSPB) concerning her claim of discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. § 791 et seq.

On June 16, 2011, Petitioner filed an appeal with the MSPB. In her

appeal, Petitioner alleged that the Agency discriminated against her on

the bases of disability (physical) when she was precluded from working by

her supervisor. On October 13, 2011, an MSPB Administrative Judge (AJ)

issued an initial decision finding that the Board lacked jurisdiction

over the matter because Petitioner failed to establish that the Agency

acted in an arbitrary and capricious manner when it denied her request to

return to work. Petitioner did not file a petition with the full Board

to review the initial decision. Instead, although she was not provided

appeal rights to the EEOC, she filed this instant petition with the EEOC.

When the MSPB has denied 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 Schmitt v. Dept. of Transportation, EEOC

Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC

Request No. 05900883 (October 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i)

and (ii). In accordance with these principles, Petition No. 0320120017

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), the Agency

is required to process the allegations of discrimination pursuant to 29

C.F.R. § 1614.105 et seq. The Agency shall notify Petitioner of the

right to contact an EEO counselor within forty five (45) days of receipt

of this decision, and to file an EEO complaint, subject to 29 C.F.R §�

�1614.107. The date on which the Petitioner filed the appeal with the

MSPB shall be deemed the date of initial contact with the EEO counselor.

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 (Z0610)

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

__3/1/12________________

Date

2

0320120017

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0320120017