01a40781
09-29-2005
Leonette M. Dudley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leonette M. Dudley v. United States Postal Service
01A40781
September 29, 2005
.
Leonette M. Dudley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40781
Agency Nos. 4G-770-0480-00
4G-770-0503-03
Hearing No. 330-A2-8032X
DECISION
On November 24, 2003, complainant filed an appeal with this Commission
from an October 22, 2003 agency decision finding no discrimination and
dismissing a portion of the complaint on procedural grounds. For the
reasons which follow, the Commission vacates the decision of the agency
and remands the amended complaint to the agency for reinstatement of
complainant's hearing request.
In her complaint, complainant alleged that she was discriminated against
on the bases of color (brown) and sex (female) when: (1) on May 24,
2000, complainant was ordered off the clock by her supervisor and she was
harassed regularly; and (2) complainant was issued a letter of warning for
unsatisfactory performance/working unauthorized overtime. The complaint
was twice amended while pending hearing before an EEOC AJ to include:
(3) sexual harassment; and (4) complainant's proposed removal and her
removal from the agency on February 7, 2003, on the basis of reprisal
for prior EEO activity.
Proceedings before the Agency, EEOC AJ, Merit Systems Protection Board
(MSPB), and the Grievance Process
The record reveals that in a letter dated November 20, 2000, the agency
informed complainant that it was accepting claim 1 of the complaint
for investigation. The agency also stated that it was dismissing
claim 2 because complainant failed to contact an EEO Counselor in a
timely manner pursuant to 29 C.F.R. � 1614.107(a)(2). In its letter,
the agency also informed complainant that the dismissal of claim 2 was
reviewable by an AJ if a hearing was requested on the remainder of the
complaint but was not appealable until final action was taken on the
remainder of the complaint. See 29 C.F.R. � 1614.107(b). After the
investigation was completed on the unamended complaint, complainant
requested a hearing before an EEOC Administrative Judge (EEOC AJ).
In a February 13, 2003 Order Granting Motion for Additional Discovery,
Amendment of Issues and Rescheduling Order, the EEOC AJ ordered, among
other things, that complainant's complaint be amended to include the
claims of sexual harassment and the agency's alleged retaliation against
complainant by issuance of a proposed removal.
While this matter remained pending before the EEOC AJ, complainant filed
a grievance on her removal. The union representative and management
representative settled the grievance in a settlement agreement<1>
which reduced the removal to a 14-day �paper� suspension and provided
that complainant will be returned to work by pay period 6 of 2003.
By letter dated March 4, 2003, complainant informed the agency that
she was �declining� the 14-day suspension. The March 4, 2003 letter
indicates that a copy was sent to the EEOC AJ.
In a March 19, 2003 Order Amending Complaint, the EEOC AJ granted
complainant's February 20, 2003 request to amend her complaint to add
the issue of her removal from the agency on February 7, 2003.
In an April 29, 2003 Order of Dismissal (April 29, 2003 Order), the EEOC
AJ stated that he was dismissing the request for a hearing, finding that
the complaint was a mixed case complaint because the removal issue and
the remaining issues are inextricably intertwined and are a mixed case
complaint. The EEOC AJ also stated that the case was being returned
to the agency for further processing pursuant to 29 C.F.R. � 1614.302.
The EEOC AJ's April 29, 2003 Order also gave notice to the agency to issue
a final order notifying complainant whether or not the agency will fully
implement the EEOC AJ's decision. Complainant was informed in the EEOC
AJ's April 29, 2003 Order that she could appeal the agency's decision
to the EEOC's Office of Federal Operations. Complainant was also given
notice in the EEOC AJ's April 29, 2003 Order that if the agency did not
issue a decision, complainant had the right to file an appeal "any time"
after the conclusion of the agency's 40-day period for issuing a decision.
By documents dated July 7, 2003, complainant filed an appeal with the
MSPB, Docket No. DA-0752-03-0518-I-1, alleging that she was appealing
her removal and her placement on enforced leave for more than 14 days.
The agency filed a motion to dismiss the MSPB appeal for lack of
jurisdiction, noting that the MSPB did not have jurisdiction to hear
appeals of suspensions of 14 days or less. See 5 U.S.C. 7512, 1201.3(a).
In response to the MSPB AJ's show cause orders regarding why complainant's
appeal should not be dismissed, complainant alleged that she had been
placed on enforced leave for more than 14 days, and had been on unpaid
leave from the agency since October 2001, because of a hostile working
environment, sexual harassment and emotional distress which forced
her to be absent from work involuntarily. The MSPB AJ noted that
in complainant's response to the show cause orders, complainant also
suggested that she had resigned or retired involuntarily.
In a November 10, 2003 Initial Decision which became final on December
15, 2003, the MSPB AJ dismissed complainant's appeal for lack of
jurisdiction.<2> In her dismissal, the MSPB AJ noted that complainant
had filed a grievance and that the parties had agreed in a settlement
to reduce the removal to a 14-day suspension. The MSPB AJ found that
complainant provided no evidence showing that she was ever actually
removed. The MSPB AJ noted that it did not have jurisdiction to hear
an appeal of a suspension of 14 days or less and also that complainant
failed to allege a prima facie case of enforced leave or constructive
suspension. The MSPB AJ also stated that because complainant failed
to raise nonfrivolous issues of fact relating to jurisdiction, she was
not entitled to a hearing. The MSPB AJ also concluded that there was no
evidence that the complainant had resigned or retired, and thus there was
no basis for a claim of involuntary resignation or retirement existing
at the time of the MSPB AJ's decision.
While this matter was before the MSPB AJ, but before the MSPB AJ had
issued her Initial Decision, the agency issued a decision, dated October
22, 2003, in the instant complaint. In its October 22, 2003 decision,
the agency stated that it was partially adopting the AJ's April 29, 2003
Order by issuing a decision on the non-mixed portion of her complaint
and assigning the issue of complainant's removal to a separate complaint
(Agency No. 4G-770-0503-03). The agency concluded that it was dismissing
claim 2 of the complaint concerning the letter of warning, noting that
complainant did not initiate contact with an EEO Counselor until June
1, 2000, for an incident which had occurred 62 days before complainant
initiated contact. The agency also concluded that it had not discriminated
against complainant.
The agency stated that complainant failed to establish a prima facie case
of race or color discrimination regarding claims 1 and 2 by failing to
show that a similarly situated employee was treated differently than she
was treated. Regarding the claim of harassment, the agency concluded
that complainant did not establish a harassment claim and that the
agency had taken prompt and appropriate measures to investigate the
validity of complainant's claim of alleged harassment. Regarding the
AJ's amendments to the complaint of reprisal and sexual harassment, the
agency stated that complainant did not raise those issues at any time
during the processing of her complaint. The agency ultimately decided
to close the case with a finding of no discrimination.
The record discloses that on the same date of its decision, October 22,
2003, the agency also issued a letter accepting the issue of complainant's
removal and assigning the removal issue to Agency No. 4G-770-0503-03.
The record also contains an undated agency document entitled Mixed
Case Rejection in Agency No. 4G-770-0503-03, wherein the agency states
that in accordance with 29 C.F.R. � 1614.107(a)(4) the complaint
in Agency No. 4G-770-0503-03 would not be processed by the agency
because complainant had elected to pursue her appeal through the MSPB.
The Mixed Case Rejection informed complainant that if she wished
to proceed further with the matter, she must bring her allegation of
discrimination to the attention of the MSPB. The Mixed Case Rejection
did not define the issue in the complaint and did not appear to contain
any appeal rights to the Commission.<3>
After the agency issued its decision on October 22, 2003, and after the
MSPB AJ issued her November 10, 2003 Initial Decision but before the MSPB
Initial Decision became final, complainant submitted a hearing request
to the EEOC AJ, dated November 13, 2003, stating that her complaint
was no longer a mixed case complaint.
In its November 26, 2003 response to complainant's request to reinstate
her request for hearing, the agency stated that the EEOC AJ lacked
jurisdiction to reinstate complainant's request for hearing because
the EEOC AJ had dismissed the complaint in his April 29, 2003 Order.
The agency stated that because it took no action within 40 days (plus
five days the agency included for service) of the EEOC AJ's April 29,
2003 Order, the agency was deemed to have adopted the EEOC AJ's decision
as the agency's decision. The agency further stated that the only option
available to complainant was to appeal the EEOC AJ's April 29, 2003 Order.
After complainant filed the instant appeal of the agency's October 22,
2003 decision, the EEOC AJ denied complainant's request to reinstate
her hearing request in an Order of Dismissal, dated January 20, 2004.
Therein, the EEOC AJ stated that agency had already issued a final
decision on the complaint and that the EEOC AJ no longer had jurisdiction
to reinstate complainant's request for a hearing.
Analysis and Findings
EEOC Regulation 29 C.F.R. � 1614.302 addresses mixed case complaints and
mixed case appeals. The term �mixed case complaint� refers to a complaint
of employment discrimination filed with a federal agency based on race,
color, religion, sex, national origin, age, disability or reprisal
related to or stemming from an action that may be appealed to the MSPB.
The term �mixed case appeal� refers to an appeal filed directly with
the MSPB that alleges that an appealable agency action was effected,
in whole or in part, because of discrimination on the basis of race,
color, religion, sex, national origin, disability, age or reprisal.
EEOC Regulation 29 C.F.R. � 1614.302 permits an employee complaining of
an action that is appealable to the MSPB to file a mixed case complaint
with the agency or filed a mixed case appeal with the MSPB pursuant
to 5 C.F.R. � 1201.151, but not both. EEOC Regulation 29 C.F.R. �
1614.302(c)(2)(ii) provides that if the MSPB AJ finds that the MSPB
does not have jurisdiction over the matter, the agency shall recommence
processing of the mixed case complaint as a non-mixed EEO complaint.
EEOC Regulation 29 C.F.R. � 1614.302(b) provides that if the MSPB
dismisses a mixed case complaint for jurisdictional reasons, the agency
shall reissue a notice under � 1614.108(f) giving the individual the
right to elect between a hearing before an EEOC AJ and an immediate
final decision.
The Commission finds that because of the MSPB's decision issued subsequent
to the AJ's April 29, 2003 decision, complainant's entire EEO complaint
should be processed by the agency as a non-mixed case. Once the MSPB
dismissed the appeal for jurisdictional reasons, the complaint became a
non-mixed case. Accordingly, the agency should have provided complainant
with notice of the right to elect between a hearing before an EEOC AJ
or an immediate final decision. See 29 C.F.R. � 1614.302(c)(2)(ii);
29 C.F.R. � 1614.302(b). The agency has failed to do this and we shall
remand the entire complaint (claims 1 - 4) for a hearing before an
EEOC AJ.
We note that the agency states on appeal that there has been no
agency decision issued on the removal issue. The Commission finds
that processing of the removal issue (agency no. 4G-770-0503-03)
apparently has ceased. To the extent that the Mixed Case Rejection
letter dismissed the removal issue, we find that the matter is properly
before the Commission and such a dismissal was improper. Furthermore,
the entire complaint (claims 1 - 4), including the removal claim,
should be kept as one complaint when sent for a hearing before an EEOC AJ.
The Commission does not address in this decision whether any of the claims
may be properly dismissed pursuant to 29 C.F.R. � 1614.107 or whether the
agency correctly found no discrimination. This decision simply holds that
given the MSPB's ruling subsequent to the AJ's decision, this case is no
longer a mixed case complaint and complainant has a right to a hearing.<4>
Accordingly, the agency's decision is VACATED and the matter is REMANDED
for further processing in accordance with the Order herein.
ORDER
The agency shall request that the Hearings Unit of the EEOC Houston
Office schedule a hearing. The agency is directed to submit a copy of
the complaint file to the EEOC Houston Office within 15 calendar days of
the date this decision becomes final for a decision from an Administrative
Judge in accordance with 29 C.F.R. � 1614.109. 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 EEOC Houston
Office. After receiving a decision from the EEOC Administrative Judge,
the agency shall issue a decision 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
September 29, 2005
__________________
Date
1The grievance settlement has a date of March
4, 2003 listed near the top of the agreement, but is also signed by the
management representative with the date of March 6, 2003.
2Complainant did not file a petition for review of the MSPB's Initial
Decision.
3The Mixed Case Rejection refers to an enclosure, but it is unclear from
the record what document is the enclosure.
4We note that as of the date of this decision, complainant has no other
matters pending on appeal before the Commission.