01A22133
03-20-2003
Arthur M. Garden, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur M. Garden v. United States Postal Service
01A22133
March 20, 2003
.
Arthur M. Garden,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22133
Agency No. 4G-752-0112-01
Hearing No. 310-A1-5390X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In his complaint, complainant alleges that he was subjected to unlawful
discrimination on the bases of his sex and disability (back injury) when
on October 21, 2000, he was reassigned from the carrier craft to the
clerk craft. At the conclusion of the agency's investigation into his
complaint, complainant was provided a copy of the investigative file and
informed of his right to request a hearing before an EEOC Administrative
Judge (AJ) or, alternatively, to receive a final decision by the agency.
Complainant requested a hearing before an AJ. After an AJ was assigned
to the matter, however, the agency filed a motion to remand the matter
to it for processing as a mixed case complaint, in order to properly
provide complainant with appeal rights to the Merit Systems Protection
Board (MSPB). The assigned AJ granted the motion and remanded the
complaint for lack of jurisdiction, stating that because complainant
is a preference-eligible veteran employed in a career position with
the agency, the matter at issue involved a constructive downgrade,<1>
and therefore constituted a mixed case complaint.
The agency subsequently issued a final decision in which it found no
discrimination in the challenged reassignment. In the �appeal rights�
portion of the final decision, the agency provided that �[i]f you are
dissatisfied with this final agency decision, as a preference eligible,
you have the right to appeal this decision to the Merit Systems Protection
Board, not the EEOC, no later than 30 days from receipt.� (emphasis
in original). However, it appears that the agency's final decision
mistakenly enclosed a standard agency-issue �Notice of Appeal to the Equal
Employment Opportunity Commission, Office of Federal Operations� form
in the copy of the final decision provided to complainant. Complainant
received the final decision on February 26, 2002, and on February 28,
2002, filed his appeal to the Commission on the Notice of Appeal form.
The Commission's regulations provide that, at the time that the agency
issues its final decision on a mixed case complaint, the agency shall
advise the complainant of the right to appeal the matter to the MSPB,
not the Commission, within thirty days of receipt of that decision.
29 C.F.R. � 1614.302(d)(3). Based on the foregoing procedural history,
we find that complainant received unclear appeal rights, inasmuch as
the agency's final decision, while noting that appeal could only be
taken to the MSPB, apparently provided complainant with a �Notice of
Appeal to the Equal Employment Opportunity Commission, Office of Federal
Operations� form. In light of the unclear appeal rights complainant was
apparently provided, we hereby VACATE the agency's final decision and
REMAND the complaint to the agency for issuance of a new final decision
with appropriate appeal rights, in accordance with this decision and
the following ORDER.
ORDER
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a new final decision with appropriate
appeal rights to the Merit Systems Protection Board, in accordance with
EEOC Regulation 29 C.F.R. � 1614.302(d)(3), and not enclosing EEOC Form
573, �Notice of Appeal to the Equal Employment Opportunity Commission,
Office of Federal Operations� or any agency-issued version of that form.
The agency shall submit a copy of the re-issued final decision to the
EEOC Compliance Officer as listed 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 (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
March 20, 2003
Date
1 The AJ stated in his remand order that complainant's carrier craft
position had been upgraded shortly after his reassignment to the clerk
craft, pursuant to a national arbitration award previously entered
against the agency.