0120151003
05-22-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120151003
Hearing No. 570-2010-00496X
Agency No. 6A000000110
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant filed an EEO complaint on November 14, 2009, alleging discrimination on the basis of disability. In her complaint, Complainant alleged that: from May 14, 2009, she was denied reasonable accommodation; her request to return to work effective May 27, 2009, was denied; she was forced to use LWOP/FMLA to cover her absence from work; and effective August 14, 2009, she was forced to resign due to financial hardship, effective August 14, 2009.
Following an investigation by the Agency, Complainant requested a hearing. Thereafter, on September 27, 2012, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) dismissed the hearing request without prejudice on grounds that the action was appealable to the Merit Systems Protection Board (MSPB). The AJ ordered the Agency to issue a mixed case final decision on the complaint, with appeal rights to the MSPB. However, the AJ noted that Complainant could re-file her request for a hearing if the MSPB did not take jurisdiction over the matter.
Following the Agency's mixed case decision with appeal rights to the MSPB, Complainant filed her appeal to the MSPB. The MSPB dismissed the appeal on January 13, 2013, for lack of jurisdiction. Complainant sought review by the full MSPB Board, which also dismissed the matter for lack of jurisdiction on July 10, 2014.
Complainant filed the instant appeal asserting that, in light of the MSPB's denial of jurisdiction over her case, she filed a renewed request for a hearing with EEOC's Washington Field Office Hearings Unit on August 10, 2014. However, Complainant claims she has not received any acknowledgment that her hearing request was reinstated. Our review of EEOC records confirms that it appears that no new hearing request has been docketed. On appeal, Complainant states she is seeking to have a hearing on her complaint.
In response to the appeal, the Agency has basically confirmed Complainant's assertions. However, the Agency argues that the appeal is premature as Complainant is "simply... seek[ing] information/enforcement related to the reinstatement of her hearing request as per [the AJ's] Order of Dismissal dated September 27, 2012."
We agree that Complainant's appeal at this juncture is premature. As such, it is DISMISSED. However, we are ORDERING the Agency to resend a copy of Complainant's hearing reinstatement request to the appropriate EEOC Hearings Unit for further processing as provided in the AJ's September 27, 2012 Order of Dismissal.
ORDER
Within fifteen (15) days of the date this decision is received, the Agency shall send a copy of this decision, the July 10, 2014 MSPB Board decision declining jurisdiction, and Complainant's August 2014 request for the reinstatement of her hearing to the Hearings Unit of EEOC's Washington Field Office.
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 (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 (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, Director
Office of Federal Operations
May 22, 2015
__________________
Date
2
0120151003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151003