0120091401
04-23-2009
Furman Knox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Furman Knox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091401
Agency No. 4G-780-0036-07
DECISION
By Notice of Appeal postmarked January 30, 2009, complainant filed an appeal with this Commission from the July 18, 2007 final decision concerning his mixed EEO case 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.
During the period at issue, complainant was employed as a City Carrier at the agency's Cresthaven Station in San Antonio, Texas.
On February 21, 2007, complainant filed a formal complaint. Therein, complainant claimed that he was the victim of unlawful employment discrimination on the bases of race and in reprisal for prior EEO activity when:
(1) on October 24, 2006, his request for light duty was denied; and
(2) from October 2, 2006 to December 28, 2006, he was placed on leave without pay status.
The record reflects that according to the agency, at the conclusion of the investigation, complainant was provided a copy of the investigative report on June 25, 2007 and notified of the forthcoming final agency decision on the merits.
The record further reflects that on June 28, 2007, prior to the issuance of a final agency decision, complainant requested a hearing before an Administrative Judge (AJ). This matter was identified pursuant to Hearing No. 451-2007-00171X
By letter to a Supervisory AJ, dated July 3, 2007, the agency asserted that complainant is a veteran's preference eligible; that an alleged constructive adverse action was involved in the instant formal complaint; and that "the case must be regarded at this point as mixed." The agency concluded by suggesting that complainant's June 28, 2007 hearing request be dismissed.
On July 18, 2007, the agency issued a document entitled "Final Agency Decision - Mixed Complaint." Therein, the agency found no discrimination. The agency provided appeal rights to the Commission. The agency also provided Mixed Case Appeal Rights, noting that complainant was "arguably entitled to appeal the issue raised in this complaint to the Merit Systems Protection Board [MSPB]."
On August 7, 2007, the agency filed a Motion to Dismiss Mixed Complaint with the AJ. Therein, the agency moved that the Commission remand the mixed complaint, Agency Case number 4G-780-0036-07, to the [agency] "for a Final Agency Decision with appeal rights to the Merit Systems Protection Board. The complainant's claims involved alleged discrimination stemming from a constructive-suspension action, which can be appealed to the MSPB."
By letter to the AJ dated August 3, 2007, complainant asserted that the agency improperly identified his case as mixed complaint.
On September 17, 2007, the AJ issued an Order Dismissing Request for Hearing. Apparently, unbeknownst to the AJ, the agency had already issued a final agency decision on July 18, 2007, the AJ ordered that the matter be returned to the agency for a final agency decision. The record reflects that there was no final agency decision issued following the AJ's September 17, 2007 Order.
In his appeal, complainant states "I appeal the EEOC on case 451-2007-00171X." Complainant also submits a copy of a document that purports to be an MSPB appeal dated January 28, 2009.
In response to complainant's appeal, the agency argues that if complainant is purporting to file an appeal from the July 18, 2007 final agency decision, his appeal "is both untimely and misguided since his right of appeal at that point was to the Merit Systems Protection Board." The agency argues, however, if complainant "is purporting to appeal the September 18, 2007 remand order from the Administrative Judge, his appeal is also untimely and misguided."
Moreover, the agency notes that the record contains a copy of a submission to the agency, appearing to be an original MSPB appeal form, completed in pen and ink and dated January 28, 2009. The agency argues that such an appeal, if filed, would now be construed as untimely, because the agency provided complainant appropriate MSPB appeal rights back on July 18, 2007. However, the agency further argues that there is no indication that the form was ever filed with the MSPB.
As a threshold matter, we determine that complainant's appeal to the Commission is neither untimely filed, nor misguided, contrary to the agency's assertions on appeal. The reasons for our determination in this regard are as follows.
First, in the July 18, 2007 final agency decision, the agency indeed gave complainant Mixed Case Appeal Rights, indicating that complainant may appeal the decision to the MSPB, and not to the Commission. However, immediately preceding this paragraph is a section entitled "Appeal to EEOC" wherein the agency stated that complainant has the "right to appeal the agency's final decision to the Commission."
Second, in its August 7, 2007 Motion to Dismiss, the agency requested that the AJ remand complainant's complaint to the agency for a final decision with appeal rights to the MSPB, with no reference being made to the fact that the agency had already issued a final decision approximately one month earlier, on July 18, 2007.
Third, the AJ's September 17, 2007 Order Dismissing Request for a Hearing, remanded the complaint to the agency for a final agency decision. Again, no acknowledgement was made to the July 18, 2007 final decision. The matter was addressed prospectively, as if a final agency decision would still be forthcoming.
Due to the confusion apparently surrounding these events, we find it appropriate to deem complainant's January 30, 2009 appeal as timely filed, from the agency's decision of July 18, 2007.
Moreover, in its July 18, 2007 decision, the agency gave complainant the option to appeal directly to the Commission on what it stated was a mixed case complaint. We cannot ascertain why the agency would say in its final decision that it was adjudicating a mixed case complaint, and then suggest in a notice of rights identified as "Appeal to EEOC" that the instant complaint might not really be "mixed."
Review of our records and published MSPB decisions does not indicate that complainant ever filed an appeal with the MSPB, despite the presence in the record of the above referenced MSPB appeal document. Complainant's failure to do so may be attributable to the agency's providing complainant with the option, on July 18, 2007, to appeal directly to the Commission. The Commission does not have appellate jurisdiction over the agency's final decision on a mixed case complaint. Accordingly, we VACATE the agency's final decision of July 18, 2007, and REMAND the complaint to the agency in accordance with the ORDER below. The agency shall re-issue its final decision, giving complainant exclusive appeal rights to the MSPB. If the MSPB dismisses the appeal for jurisdictional reasons, the agency shall promptly reissue the notice required under 29 C.F.R. � 1614.108(f), granting complainant the right to elect between a hearing before an EEOC AJ and an immediate final decision. 29 C.F.R. � 1614.302(b).
ORDER
The agency is ORDERED to issue complainant a final decision on the merits of complainant's claims within forty-five (45) calendar days from the date that this decision becomes final. Assuming the complaint is a mixed-case complaint, as identified by the agency, the agency's decision must provide complainant with exclusive and appropriate appeal rights to the Merit Systems Protection Board (not the EEOC), pursuant to 29 C.F.R. � 1614.302(d)(3). A copy of the agency's decision shall be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
April 23, 2009
__________________
Date
2
0120091401
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091401