0120111414
07-07-2011
Charles J. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Charles J. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120111414
Agency No. 4C440010210
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 23, 2010, finding no discrimination. Upon
review, Complainant’s appeal is DISMISSED since the Commission lacks
jurisdiction to consider the appeal. 29 C.F.R. § 1614.302(d)(1)(ii).
BACKGROUND
The record indicates that on July 24, 2010, Complainant, a Laborer,
Custodial at the Agency’s Lorain Post Office facility in Lorain,
Ohio filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of race (African-American), color (Black),
and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when on April 28, 2008 he Agency informed him that his
work hours were being reduced.1 The Agency investigated the compliant and
issued its decision finding no discrimination. Complainant’s appeals
the Agency’s final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.302(d)(1)(ii) requires that if
complainants are dissatisfied with the agency’s final decision on
a mixed case complaint, complainant’s may appeal the matter to the
Merit Systems Protection Board (MSBP) (not the EEOC) within 30 days of
receipt of the Agency’s final decision. Individuals who have received
a final decision from the MSPB on the appeal of a final decision on
a mixed case may petition the EEOC to consider the MSPB’s decision.
Here, the Agency indicted that the instant complaint was a “mixed case
complaint” pursuant to 29 C.F.R. § 1614.302(d). In its decision,
the Agency clearly advised Complainant of his right to appeal its
final decision to the MSPB and not to the EEOC. Agency Decision,
p. 13. Complainant however, filed his appeal with the EEOC. Under the
regulation, the Commission has no jurisdiction to consider Complainant’s
appeal.
CONCLUSION
Accordingly, Complainant’s appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
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 (S0610)
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. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 7, 2011
__________________
Date
1 The record further reflects that in an affidavit obtained during the
investigation of this matter, Complainant added the purview of disability
to the instant complaint. The Agency noted in its final decision that that
portion of his claim based on disability falls within the definition of
a class complaint, Sandra McConnell v. United States Postal Service. In
that regard, the Agency reassigned that portion of Complainant’s claim
that his hours were reduced based on his disability and pursuant to the
National Reassessment Process (NRP), to Agency Case No. 4C-440-0198-10.
The Agency further advised Complainant that Agency Case No. 4C-440-0198-10
is placed in abeyance pending adjudication of the McConnell complaint.
To the extent that Complainant challenges the Agency’s decision to
hold the disability portion of his claim in abeyance, the Commission
finds that the Agency correctly held Complainant’s claim of disability
discrimination in abeyance. Commission records disclose that on May
30, 2008 an EEOC Administrative Judge granted class certification
in McConnell, which defined the class as all permanent rehabilitation
employees and limited duty employees at the Agency who have been subjected
to the NRP from May 5, 2006 to the present, allegedly in violation of
the Rehabilitation Act. The AJ defined the McConnell claims into the
following broader complaint: (1) The NRP fails to provide a reasonable
accommodation (including allegations that the NRP “targets” disabled
employees, fails to indlude an interactive process and improperly
withdraws exiting accommodation); (2) The NRP creates a hostile work
environment; (3) The NRP wrongfully discloses medical information; and
(4) The NRP has an adverse impact on disabled employees.
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0120111414
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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