0120120935
07-24-2012
Frank K. Nelson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Frank K. Nelson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120120935
Agency No. 4H-300-0107-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's revised final decision dated December 5, 2011, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
BACKGROUND
During the period at issue, Complainant worked as a Senior Mail Processor at the Agency's Douglasville, Georgia Main Post Office.
On December 29, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On April 6, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race (African American), age and in reprisal for prior EEO activity.
In the instant final decision, the Agency determined that the formal complaint was comprised of four claims, that were identified in the following fashion:
1. from May 5-7, 2009, he was denied Family Medical Leave Act (FMLA) rights he was entitled to under USERRA (Uniform Services Employment and Re-employment Rights Act);
2. on February 4, 2011, he was denied FMLA rights based on insufficient work hours;
3. on March 3, 2011, he was attacked by a co-worker and subsequently, as a result, on March 21, 2011, he was placed into an Emergency Off-Duty Status; and
4. on April 4, 2010, he had to file a Petition for Enforcement with the Merit Systems Protection Board (MSPB) to receive the total back pay and benefits awarded to him as a result of the MSPB's decision in Docket Number AT-0752-10-1011-C-1.2
On August 29, 2011, Complainant was issued a Notice of Decision in which he was notified that he was being removed from Agency employment relating to the March 3, 2011 incident identified in Claim 3.
In its December 5, 2011 revised final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's EEO contact occurred on December 29, 2010, which was beyond the 45-day limitation period. The Agency also dismissed claims 1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, asserting that these claims are a collateral attack on the FMLA process.
The Agency dismissed claims 3 and 4 pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the same matter before the MSPB.
The Agency also dismissed claim 4 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), asserting that this claim is a collateral attack on the MSPB process. Specifically, the Agency stated that Complainant should have raised his allegations of not receiving his remedial award as a result of a MSPB decision through the MSPB process, not through the EEO complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the instant final decision must be vacated and the matter be remanded to the Agency for proper processing for a hearing which was already underway. Specifically, Complainant argues that he exercised his EEO rights when he requested a hearing on November 29, 2011 "after having his MSPB appeals dismissed for one reason or another, rendering the matter un-mixed and ripe for the venue provided by the Commission. Since the pending EEO matter is so intricately intertwined with the removal decision, the matter complained of must be considered merged with the issue of removal which took place subsequent to filing a complaint."
ANALYSIS AND FINDINGS
Claims 1 and 2
Claims 1 and 2 constitute a collateral attack on the FMLA process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges regarding the denial of his FMLA rights were within the FMLA process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the FMLA process. The FMLA falls under the regulatory ambit of the Department of Labor, not the Commission; therefore, the Commission has no jurisdiction over this type of claim. As such, we find that the Agency properly dismissed claims 1 and 2 for failure to state a claim.
Claim 3
A mixed-case complaint is a complaint of discrimination filed with a federal Agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may elect to initially file a mixed-case complaint with an agency or may file a mixed-case appeal directly with the MSPB, pursuant to 5 C.F.R. 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to purse the non-EEO process. Moreover, 29 C.F.R. � 1614.302 provides that whichever is filed first shall be considered an election to proceed in that forum.
Regarding claim 3, as a preliminary matter, we note that the Agency's basis for dismissal of this claim is that Complainant elected to raise the matter identified therein in an appeal to the MPSB on March 24, 2011, in a case identified by the Agency under MSPB Docket No. AT-4324-11-0306-I-1. The Commission finds, however, that this assessment by the Agency was in error. The record contains a copy of an MSPB Initial Decision for MSPB Docket No. AT-4324-11-0306-I-1, dated May 4, 2011. Therein, an MSPB AJ noted that the captioned MSPB appeal was filed on January 15, 2011, and that the subject claim was whether the Agency had violated Complainant's rights under USERRA by denying him FMLA benefits. The issue in this appeal, therefore, was not the issue identified in Claim 3 of the instant formal complaint.
However, the record does contain a matter raised in an MSPB appeal that encompasses the matter raised in claim 3. Specifically, the record reflects that Complainant filed an appeal with the MSPB (MSPB Docket No. AT-0752-11-0573-I-1) on April 6, 2011, identifying the following personnel actions as grounds for the appeal: denial of within-grade increase; suspension of more that fourteen days; failure to reinstate employment; other action; and removal. Complainant identified the following dates: Agency proposed letter - March 31, 2011; Agency final decision letter - August 30, 2011; and effective dated of Agency action or decision - August 30, 2011.
Moreover, in an attached narrative, Complainant asserted that the Agency was "wrong" in issuing a removal and by not issuing a removal "to [Employee DL] who was actually the aggressor in the altercation when he sought out and attacked me."
Finally, in regard to claim 3, the record contains a copy of an MSPB initial decision dated June 1, 2011. Therein an Administrative Judge (AJ) of the MSPB filed the captioned appeal on April 6, 2011, challenging the Agency's proposal to remove him from a Senior Mail Processor position. The MSPB AJ noted that he had previously explained to Complainant that there were various potential "jurisdictional hurdles" relating to the appeal, and that the AJ was prepared to issue an Order directing Complainant to explain why the MSPB appeal should not be dismissed.
However, the Commission notes that the MSPB appeal docketed as AT-0752-11-0573-I-1 was filed on April 6, 2011, and that the instant formal EEO complaint was also filed on April 6, 2011. Given the contemporaneous filing of the MSPB appeal and the EEO complaint, we determine that the Agency has not satisfactorily demonstrated that Complainant indeed elected to pursue a matter in the MSPB forum prior to filing the instant formal EEO complaint.
The Agency's decision to dismiss claim 3 pursuant to 29 C.F.R. 1614.107(a) (4) is therefore improper, for the reason stated herein.
Claim 4
Regarding claim 4, the record reflects that the MSPB issued a document entitled "Recommendation", dated May 19, 2011. (MSPB Docket No. AT-0752-10-1011-C-1). Therein, an MSPB AJ noted that on April 4, 2011, Complainant had filed a Petition for Enforcement claiming that the Agency failed to comply with an MSPB final decision dated December 23, 2010. In the December 2010 decision, the MSPB had ordered the agency to cancel a removal, and to restore Complainant retroactively to his position, with appropriate back pay and benefits, effective August 28, 2010. In the May 19, 2011 Recommendation, the AJ granted the Petition for Enforcement, and ordered back pay, with interest, to include appropriate payment for overtime.
Upon review of the record, we find that claim 4 is in essence a collateral attack on a matter relating to an MSPB Petition for Enforcement As such, we find that the Agency properly dismissed claims 3 and 4 pursuant to 29 C.F.R. � 1614.107(a)(1).
Because we affirm the Agency's dismissal of claim 4 for the reason stated herein, we will not address alternative dismissal grounds.
CONCLUSION
Accordingly, the Agency's final decision dismissing claims 1, 2, and 4 is AFFIRMED. The Agency decision to dismiss claim 3 is REVERSED. Claim 3 is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (claim 3) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 24, 2012
__________________
Date
1 The record reflects that on December 5, 2011 the Agency issued a revised final decision superseding its June 2, 2011 final decision because it did not contain the correct appeal rights.
2 The record reflects that the Agency inadvertently identified the Petition for Enforcement date as April 4, "2010," when it appears that the Petition for Enforcement was filed on April 4, "2011," as more fully discussed below.
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0120120935
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120935
9
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