01a43202
11-29-2004
Richard Lethridge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard Lethridge v. United States Postal Service
01A43202, 07A40076
November 29, 2004
.
Richard Lethridge,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos.07A40076
01A43202
Agency Nos. 1-F-946-0007-00
1-F-946-0075-01
1-F-946-0059-02
Hearing Nos. 370-A0-2349X
370-A2-2420X
DECISION
Concurrent with its March 12, 2004 final order, the agency filed a timely
appeal from the decision of an EEOC Administrative Judge (AJ) concerning
the adjudication of Agency Nos. 1-F-946-0007-00 and 1-F-946-0075-01,
docketed as Appeal No. 07A40076.
Additionally, complainant filed a timely appeal from another final
agency order, also issued on March 12, 2004, concerning the AJ's
dismissal of Agency No.1-F-946-0059-02, docketed as Appeal No. 01A43202.
The Commission accepts and consolidates the appeals. See 29 C.F.R. �
1614.405 and 29 C.F.R. � 1614.606.
Complainant, a Distribution Operations Supervisor EAS-16 employed at the
agency's Oakland Processing and Distribution Center, Oakland, California
facility, filed the first captioned formal complaint on November 23,
1999 (1-F-946-0007-00, hereinafter referred to as �complaint 1').
Therein, complainant claimed that the agency did not provide him with
a reasonable accommodation for a disability. Specifically, complainant
claimed that the agency reinstated a co-worker who had threatened his
life; that at approximately the same time, complainant was threatened
by another co-worker; and that these incidents together significantly
exacerbated his anxiety and depression disorders. Complainant stated
that his psychotherapist recommended that he not be placed in a stressful
position, or supervising others, and that his placement must be in a
facility other than the Oakland facility. However, complainant claimed
that the agency did not provide him with a suitable position, but instead
placed him in a non-pay status for an extended time period.
On October 11, 2001, complainant filed the second captioned complaint
(1-F-946-0075-01, hereinafter referred to as �complaint 2'). Therein,
complainant claimed that in August 2001, the agency did not provide him
with a reasonable accommodation for his disability when it cancelled a
suitable detail assignment in Sacramento, and then failed to provide
another suitable assignment thereafter. The record shows that
complainant did not work again after this detail ended, on August 22,
2001.
On September 27, 2002, complainant filed the third captioned complaint
(1-F-946-0059-02, hereinafter referred to as �complaint 3'). Therein,
complainant claimed that the agency did not provide him with a reasonable
accommodation for his disability when on July 18, 2002, the agency issued
him a notice of proposed removal as a disability separation.
The agency accepted all three complaints for investigation, and forwarded
them to an EEOC Administrative Judge (AJ) for a hearing. In August 2003,
while this matter was pending before the AJ, the agency issued complainant
a notice of removal.
On October 8, 2003, after conducting a hearing, the AJ issued a decision
regarding the agency's liability. Therein, the AJ found that the agency
failed to provide complainant with a reasonable accommodation for his
disability when it failed to provide him with a suitable position for
a period of employment commencing in 1999, and terminating upon the
issuance of the proposed removal in July 2002.
However, the AJ declined to address complaint 3. The AJ found that the
record was not adequately developed, and that complainant filed an appeal
with the Merit System Protection Board (MSPB) regarding his removal.
After conducting another hearing on the issue of damages, in a decision
dated January 30, 2004, the AJ ordered the agency to provide complainant
with full remedial relief. As indicated above, the agency issued a final
order on March 12, 2004, rejecting the AJ's decision, and appealed this
matter to the Commission.
On January 26, 2004, the AJ issued an Order dismissing complaint 3.
Therein, the AJ found that complainant filed an appeal with the MSPB
regarding his removal; and that he claimed discrimination on the basis
of disability, alleging that the agency failed to provide him with a
suitable position as a reasonable accommodation. Specifically, the
AJ found that the proposed removal alleged in complaint 3, must be
associated with the removal action pending before the MSPB, such that
complaint 3 must be dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).
The AJ found that the claims raised in complaints 1 and 2 were not
connected with the removal action.
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. See 29 C.F.R. � 1614.302(a)(1). Generally,
when a claim contains both appealable and non-appealable matters,
the non-appealable issues should be processed separately from issues
appealable to the MSPB. See Caldwell v. Office of Personnel Management,
EEOC Request No. 05910649 (September 6, 1991). However, the Commission
has also held that when appealable and non-appealable matters cannot
sensibly be bifurcated, the entire case should be referred to the MSPB.
See Goins v. Tennessee Valley Authority, EEOC Request No. 05931007
(June 30, 1994).
As an initial matter, we note that the record reflects that complainant
filed several appeals with the MSPB regarding his August 2003 removal. The
MSPB dismissed two appeals without prejudice, upon the request of the
parties to postpone the proceedings in an effort to reach a settlement.
(MSPB Initial Decision No. SF-0752-03-0625-I-1, December 13, 2003 and MSPB
Initial Decision No. SF-0752-03-0625-I-2, March 17, 2004). However, in
MSPB Initial Decision No. SF-0752-03-0625-I-3, issued on September 13,
2004, the MSPB again dismissed complainant's appeal without prejudice,
but indicated that the appeal would automatically be re-filed on November
15, 2004. Therefore, we find that complainant's termination claim is
currently pending before the MSPB. We further note that there is no
dispute that the MSPB has jurisdiction over complainant's termination
claim.
Complaint 3
We note that when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to have
merged with the proposal. See Siegel v. Department of Veterans Affairs,
EEOC Request No. 05960568 (October 10, 1997); Charles v. Department of
the Treasury, EEOC Request No. 05910190 (February 25, 1991).
Here, we find that complaint 3, which concerns a July 2002 notice of
proposed removal, was still pending at the time that the agency issued the
notice of removal in August 2003. Therefore, we find that the removal
action merged with the proposed removal action, and that complaint 3
should be viewed as a termination claim. Because complainant appealed
his termination to the MSPB, we find that the AJ and the agency properly
dismissed complaint 3 pursuant to 29 C.F.R. � 1614.107(a)(4).
Complaints 1 and 2
Prior to issuing a decision on complaints 1 and 2, the AJ acknowledged
that the agency terminated complainant's employment, and that he appealed
this matter to the MSPB. We find that the record shows that in both
complaints 1 and 2, complainant contends that the agency failed to provide
him with a suitable position to accommodate his psychiatric disability,
and that this resulted in long periods of non-pay status. In fact, in his
MSPB appeal, complainant avers that it is the agency's historic failure
to provide him with a suitable position as a reasonable accommodation
that resulted in his termination. Furthermore, complainant avers that
the termination itself constitutes a failure to provide a reasonable
accommodation, in keeping with this same discriminatory history, as
reflected in complaints 1 and 2.
Therefore, based on these statements, as well as the record before us, we
find that complainant's contentions that the agency's on-going failure
to provide him with a suitable position, resulting in long periods of
non-pay status, and culminating in his termination, must be construed
together as one matter. For this reason, we further determine that
complaints 1 and 2 cannot sensibly be disassociated from the termination
claim, and that the entire matter must be referred to the MSPB where
the termination claim was, and is now, pending. Accordingly, we find
that the AJ erred when she denied the agency's motion to dismiss claims
1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(4).
In making the above determination, the Commission acknowledges the
extensive EEO processing that has taken place. We further find, that
under certain circumstances, the Commission may properly assume initial
jurisdiction of a mixed case matter when it becomes so firmly enmeshed in
the EEO process that it would unduly delay justice and create unnecessary
procedural complications to remand it to the MSPB. See Harrell
v. Department of Veterans Affairs, EEOC Request No. 05940652 (May 24,
1995). However, in this case, it is complainant who chose to pursue his
termination claim in the MSPB forum, effectively precluding Commission
jurisdiction. Thus, to avoid artificially bifurcating complainant's
claims between two forums, risking inconsistent adjudications, we find
that the issues raised in complaints 1 and 2 must be referred to the
MSPB for consolidation with the termination claim.
For the reasons set forth above, we find that the AJ should have declined
jurisdiction over this entire matter in favor of the MSPB, and dismissed
complaints 1 and 2, with an order to the agency to advise complainant
that he must bring the claims of discrimination contained in complaints
1 and 2 to the attention of the MSPB, pursuant to 5 C.F.R. � 1201.155.
See 29 C.F.R. � 1614.302(c)(2)(i).
Conclusion
In conclusion, we AFFIRM the AJ's decision and the agency's final
order dismissing complaint 3. However, we VACATE the AJ's decision
on complaints 1 and 2, and REMAND these complaints to the agency to
undertake further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ordered to advise complainant, in writing, regarding the
procedural disposition of complaints 1 and 2, and advise him that he
must bring the discrimination claims raised in complaints 1 and 2 to the
attention of the MSPB, pursuant to 5 C.F.R. � 1201.155, as provided in
29 C.F.R. � 1614.302(c)(2)(i). The agency shall advise complainant of
the right to petition the EEOC to review the MSPB's final decision on
the discrimination issue, and that dismissal of a mixed case complaint
is not appealable to the Commission except where it is alleged that
the complaint is actually a non-mixed case matter.
Copies of all pertinent documentation confirming compliance with this
Order 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
November 29, 2004
__________________
Date