Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 26, 2013

0120114079 (E.E.O.C. Mar. 26, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120114079
Hearing No. 532-2011-00016X
Agency No. 4C-440-0095-10

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
August 11, 2011, 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. Upon review, the Commission finds that Complainant's
complaint was improperly dismissed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the
New Middleton Post Office in Youngstown, Ohio. On July 2, 2010, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination on the bases of race
(Caucasian), sex (female), disability, age (over 40), and in reprisal for prior protected EEO
activity when she was forced to use sick leave while waiting for her supervisor to offer her a
reassignment.

The Agency accepted the complaint and conducted an investigation. At the conclusion of the
investigation, Complainant requested that the matter be assigned to an EEOC Administrative
Judge (AJ) for a hearing. The AJ issued a decision dismissing the complaint. On August 11,
2011, the Agency issued a final order fully implementing the AJ’s decision. From that order,
Complainant brings the instant appeal.

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On May 20, 2010, prior to filing the instant complaint, Complainant filed an appeal with the
Merit Systems Protection Board (MSPB) in which she contended that the Agency improperly
placed her on enforced leave for over 30 days. In a decision dated December 20, 2010, the
Board dismissed the appeal for lack of jurisdiction on the ground that Complainant’s absence
from work was the result of Complainant’s voluntary action and not the result of the Agency
placing her on enforced leave.

ANALYSIS AND FINDINGS
The AJ dismissed the complaint, pursuant to 1614 C.F.R § 1614.107(a)(1), because
Complainant had filed the MSPB appeal described above. The AJ referred to this as an
application of the doctrine of res judicata. AJ Decision at 3. Commission precedent holds that
the doctrine of res judicata has no application where, as here, the prior case was dismissed for
lack of jurisdiction. Fullmer v. Department of Health and Human Services, EEOC No.
01A34828 (March 3, 2005). (“Since the MSPB lacked jurisdiction to hear the MSPB appeal, it
could not properly adjudicate the merits of the present complaint.”)

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is VACATED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER

The Agency shall submit to the Hearings Unit of the Cleveland Field Office the request for a
hearing and a copy of the complaint file 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 complaint file has been transmitted to the
Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.

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
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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
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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

March 26, 2013
Date