01A30773_r
10-23-2003
Lea M. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lea M. Smith v. United States Postal Service
01A30773
October 23, 2003
.
Lea M. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30773
Agency No. 4H-300-0130-01
Hearing No. 110-A2-8243X
DECISION
Complainant filed an appeal with this Commission on October 21, 2002
concerning her 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. In her complaint, complainant
alleged that she was subjected to discrimination on the basis of reprisal
for prior EEO activity when:
The agency issued a Notice of Removal to complainant on January 8, 2001.
PROCEDURAL HISTORY
The record discloses that complainant initially sought EEO counseling on
January 19, 2001. On March 31, 2001, complainant filed an EEO complaint
alleging discrimination on the basis of reprisal in connection with the
removal action. On July 18, 2001, complainant was reinstated to her
position, as a result of a settlement agreement achieved through the
agency's negotiated grievance process.
From here, complainant's complaint appears to have encountered some
procedural confusion concerning the status of the complaint as a mixed or
unmixed case. Record documents show that complainant received a notice
from the agency dated September 20, 2001, transmitting the agency's
investigative file and advising her that she may request either a final
decision by the agency or a hearing before an EEOC Administrative Judge
(AJ). Subsequently, the agency sent complainant another notice dated
October 15, 2001, canceling the prior notice and advising complainant
that the agency intended to issue a final decision regarding her mixed
case complaint, within 45 days, after which complainant would have the
right to appeal that decision to the Merit Systems Protection Board
(MSPB or Board), not the EEOC.
At this point, the record documentation ceases to fully explain the
procedural events that transpired.<1> However, ultimately, the agency
issued a final decision, dated August 2, 2002. In that decision, the
agency found no discrimination occurred in connection with complainant's
removal. Further, having processed complainant's complaint as a mixed
case complaint, the agency notified complainant of her right to appeal
the agency's decision to the MSPB. On October 16, 2002, complainant's
complaint was dismissed from the EEOC hearing process by an Order of
Dismissal Without Prejudice for Mixed Case Processing, by an AJ from the
Commission's Baltimore District Office.<2> Thereafter, on October 17,
2002, complainant filed an appeal with the MSPB.
ANALYSIS
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)).
The Commission finds that by Order dated November 6, 2002, complainant's
appeal filed with the MSPB was dismissed by the MSPB for lack
of jurisdiction.<3> Where an appeal to the MSPB is dismissed for
jurisdictional reasons, the matter becomes "unmixed" and returns to the
agency's EEO process. See 29 C.F.R. � 1614.302(c)(2)(ii). Therefore,
we find that the matter should be remanded so complainant may have a
hearing scheduled before an EEOC AJ.
We therefore VACATE the agency's August 2, 2002 final decision and
REMAND the case to the agency for further processing pursuant to the
order herein.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC field
office to schedule a hearing regarding complainant's complaint. The
agency is directed to submit a copy of the complaint file to the EEOC
Hearings Unit within 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 the regulations
set forth at 29 C.F.R. � 1614.109 and the agency shall issue a decision
in accordance with the regulation set forth at 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
October 23, 2003
__________________
Date
1On appeal, complainant explains that her
complaint was initially dismissed on October 15, 2001, from the EEO
hearing process by an EEOC AJ, who determined that her complaint was a
mixed case complaint. On February 19, 2002, complainant's appeal to the
MSPB was also dismissed, when the Board determined it had no jurisdiction
over her case. Thus complainant states she was at a loss to determine
which forum to pursue, whereupon she filed her most recent appeal with
the MSPB on October 17, 2002, and also initiated the instant appeal.
2Complainant indicates on appeal that she has received dismissal orders
from two different EEOC Administrative Judges (at different district
offices) and direction regarding the EEO/MSPB process from a third EEOC
(Chief) Administrative Judge.
3The Board found that on July 18, 2001, complainant was reinstated to
her position effective February 10, 2001, after filing a grievance
regarding the same removal action. Smith v. USPS, MSPB Docket
No. AT-0752-03-0099-I-1 (November 6, 2002).