Jerry L. Lewis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 15, 2004
01A42374 (E.E.O.C. Jun. 15, 2004)

01A42374

06-15-2004

Jerry L. Lewis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jerry L. Lewis v. United States Postal Service

01A42374

June 15, 2004

.

Jerry L. Lewis,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A42374

Agency No. 4J-460-0154-03

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated January 20, 2004, pertaining to 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. and the

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. The Commission accepts the appeal in accordance

with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office regarding claims of discrimination

based on race, sex and age. Informal efforts to resolve complainant's

concerns were unsuccessful. Subsequently, on November 13, 2003,

complainant filed a formal complaint. The agency, in its decision,

framed the claims as follows:

(1) May 10, 2003 - required to work an average of 13.5 hours and only

paid 9 hours.

(2) May 15, 2003 - falsely accused of inappropriate conduct.

(3) October 8, 2003 - terminated from employment.

The agency issued a decision dismissing the complaint on the grounds that

he raised the matters in an appeal to the Merit Systems Protection Board

(MSPB), pursuant to 29 C.F.R. � 1614.107(a)(4). According to the agency,

complainant filed his MSPB appeal on November 5, 2003, before his formal

EEO complaint, and therefore elected to pursue the non-EEO process.

Complainant presents no contentions on appeal.

A mixed case complaint is a complaint of employment discrimination filed

with a federal agency, related to or stemming from an action that can be

appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). 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, pursuant to 5 C.F.R. �

1201.151, but not both. 29 C.F.R. � 1614.302(b). Moreover, whichever

is filed first shall be considered an election to proceed in that forum.

See Dillon v. United States Postal Service, EEOC Appeal No. 01981358

(December 23, 1998)(citing Milewski v. United States Postal Service,

EEOC Request No. 05920429 (June 11, 1992)).

In the instant case, the record contains a copy of a March 31, 2004

Initial Decision by a MSPB Administrative Judge. The decision states

that complainant appealed his removal to the Board on November 4, 2003,

and notes that he later filed a discrimination complaint. A review of

the decision establishes that the appeal concerns the same matters as

those raised in claims (2) and (3). Since complainant has elected the

non-EEO process, the Commission finds that the agency's dismissal of

claims (2) and (3) was proper. We do not find, however, that the MSPB

appeal addresses claim (1). Complainant's alleged payment for 9 hours of

work, when he worked 13.5 hours, is not reflected in the MSPB decision.

Therefore, we find that the agency improperly dismissed claim (1).

Accordingly, the agency's decision regarding claims (2) and (3) is

AFFIRMED. The agency's decision to dismiss claim (1) was improper, and

is hereby REVERSED. Claim (1) is REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. 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 becomes final, 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.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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

June 15, 2004

__________________

Date