0120151433
02-28-2017
Cheryll K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cheryll K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120151433
Agency No. 4X048001715
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated February 17, 2015, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent at the Agency's Los Angeles Processing & Distribution Center facility in Los Angeles, California. On January 26, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Not Specified), color (Not Specified), disability (unspecified ), age (56), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On November 7, 2014, Complainant was removed from her position at the Agency.
The Agency characterized the claim differently, stating that Complainant was alleging that on the date in question she was placed on a Leave Without Pay (LWOP) status pending the resolution of her grievance appeal to a Notice of Removal issued to her on October 8, 2014. The Agency dismissed the claim for stating the same claim as a previously-filed claim. We note, however, that in her Formal Complaint Complainant states "On November 7, 2014 at the end of my tour I was removed from the Postal Service by supervisor [S] via instruction from Acting Manager." We therefore find that the claim is more appropriately characterized as we have, above.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The record shows that on October 13, 2014, Complainant sought EEO Counseling alleging discrimination based on race, color, age, disability and reprisal when, on October 8, 2014, she was issued a notice of removal (Notice) by S. The claim was given Agency No. 4X-048-0001-15 (Complaint #1). According to the Agency, Complainant was issued a notice of right to file but failed to do so2. In its Dismissal for the instant complaint (Complaint #2), the Agency noted that the October 8 Notice, referenced in Complaint # 1, specifically stated that "you are hereby notified that you will be removed from the Postal Service no sooner than thirty (30) calendar days from the date of your receipt of this letter" and that the November 7 removal letter addressed in Complaint # 2 was issued thirty calendar days after the October 8 Notice. The Agency found that Complaint # 2 therefore stated the same claim as Complaint # 1 and dismissed Complaint # 2 on those grounds.
We note that, had Complainant filed her Formal Complaint for Complaint #1, the Agency could have dismissed it pursuant to 29 C.F.R. � 1614.107(a)(5) for addressing a pending action, directing Complainant to file a new complaint addressing the November 7 removal. Under such a scenario such a new complaint would not be dismissed for stating the same claim as Complaint #1. Similarly here, once the removal notice was issued, Complainant is entitled to file a complaint regarding her removal considering that her original filing was premature and addressed a pending action. We therefore find that the Agency erred in dismissing Complaint # 2.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Dismissal and REMAND the claim for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision is issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision is issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (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 (Nov. 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 (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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2017
__________________
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 On appeal, Complainant maintains she submitted a Formal Complaint for Complaint # 1 but that the Agency failed to process it. The Agency denies having ever received a Formal Complaint for that complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120151433
5
0120151433