0120143262
11-20-2015
Roderick P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roderick P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120143262
Hearing No. 551-2013-00042X
Agency No. 4E-570-0038-12
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action, dated August 22, 2014, implementing a decision by an EEOC Administrative Judge (AJ) dismissing his complaint of unlawful employment discrimination alleging violations of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Flat Sorting Machine Operator at the Agency's Post Office facility in Great Falls, Montana.
On August 24, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. on April 28, 2012, Complainant was issued a 14-day suspension for unacceptable conduct and failure to perform the duties of his position; and
2. on June 28, 2012, the Agency issued a decision letter terminating Complainant effective July 6, 2012.
By letter dated September 6, 2012, the Agency accepted claim (1) regarding the 14-day suspension for investigation. The Agency dismissed claim (2), pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the same claim in an appeal before the Merit Systems Protection Board (MSPB). The Agency noted that the MSPB appeal had been filed on July 3, 2012. As such, the Agency found Complainant had elected to pursue his claim regarding the termination with the MSPB prior to filing the instant EEO complaint on August 24, 2012. Therefore, the Agency only investigated the claim regarding the 14-day suspension.
Following the Agency's investigation, Complainant requested a hearing before the EEOC AJ. While the complaint was before the EEOC AJ, Complainant's termination claim was addressed by an MSPB Administrative Judge (MSPB AJ). On May 7, 2013, the MSPB AJ issued an Initial Decision mitigating the Agency's removal action to a 45-day suspension. Following the MSPB AJ's decision, the Agency filed a motion with the EEOC AJ to dismiss the instant EEO complaint.2 The Agency asserted that Complainant's claim of discrimination with regard to the suspension had been addressed by the MSPB AJ.
The EEOC AJ issued his decision dismissing the EEO complaint. The EEOC AJ determined that the MSPB AJ relied upon the same facts and allegations presented in the instant EEO complaint when reviewing the removal action. The EEOC AJ determined that the MSPB AJ adjudicated both claims of the entire action. The EEOC AJ found that the MSPB AJ's adjudication of the underlying facts and issues effectively barred Complainant from re-litigating his claim regarding the 14-day suspension with the EEOC. Therefore, the EEOC AJ dismissed the matter, pursuant to 29 C.F.R. � 1614.107(a)(4), on August 4, 2014. The Agency issued its Notice of Final Action on August 22, 2014, implementing the EEOC AJ's decision to dismiss the complaint.
This appeal followed. Complainant, through his representative (Representative), asserted on appeal that there was no evidence that the MSPB AJ in fact ruled on both claims as asserted by the Agency and the EEOC AJ. The Representative indicated that the MSPB AJ did not have jurisdiction over the 14-day suspension. Furthermore, the only reason the 14-day suspension was mentioned in the MSPB appeal was because the Agency relied upon the 14-day suspension in issuing the removal action as part of its progressive discipline. As such, Complainant argued that his claim of discrimination regarding the 14-day suspension had not been addressed and res judicata cannot apply. The Representative requested that the Commission remand the matter to the EEOC AJ for a hearing on the merits of his claim of discrimination.
ANALYSIS AND FINDINGS
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 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). The regulation at 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non - EEO process.
The Commission has reviewed the MSPB AJ's Initial Decision in Docket Number DE-0752-12-0398-I-1, dated May 7, 2013. The 14-day suspension is raised in the Initial Decision as part of the facts and events that led up to the Agency's termination action. The MSPB AJ did address Complainant's claim that the termination action was a violation of the Rehabilitation Act. However, at no point did the MSPB AJ address whether the 14-day suspension was lawful or if it constituted discrimination. We also take administrative notice that Complainant petitioned the Board to review the Initial Decision. On July 14, 2014, the MSPB Board issued its Final Order denying the petition and affirming the MSPB AJ's initial decision. In its Final Order, the Board noted that the MSPB AJ properly considered the 14-day suspension in considering whether termination was the appropriate penalty. However, we find that the reference to the 14-day suspension was solely for the purposes of the progression of discipline that resulted in the termination action. We conclude that neither the MSPB AJ nor the MSPB Board considered or made any findings as to whether the 14-day suspension was itself appropriate or a violation of the Rehabilitation Act. Therefore, we find that the dismissal by the EEOC AJ, pursuant to 29 C.F.R. � 1614.107(a)(4), was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the EEOC AJ's dismissal of claim (1) and REMAND the matter in accordance with our ORDER below.
ORDER
The Agency shall submit a request for a hearing and a copy of this decision to the Hearings Unit of the EEOC's Seattle Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to also submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (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 request and complaint file have been transmitted to the Hearings Unit.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 20, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the Agency's motion to dismiss dated May 13, 2013, was entitled "RESPONDENT'S REPLY TO COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION FOR DECISION WITHOUT A HEARING."
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