01A24282
09-02-2003
Janis L. Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janis L. Parker v. United States Postal Service
01A24282
September 2, 2003
.
Janis L. Parker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24282
Agency No. 1-H-337-0028-01
Hearing No. 150-A2-8325X
DECISION
Complainant timely initiated an appeal from a final agency order
concerning 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission reverses and remands the agency's
final order.
The record reveals that during the relevant time, complainant was
employed as a Manager at the agency's Processing and Distribution Center
in St. Petersburg, Florida facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on September 10, 2001, alleging
that she was discriminated against on the bases of sex (female), age
(D.O.B. February 1, 1952), and reprisal for prior EEO activity when, on
June 20, 2001, she was harassed into taking a disability retirement so
that the agency could fill the position with a younger, male employee.
The agency determined that the matter at hand was a mixed complaint.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). At the same time, the agency issued a final
decision finding no discrimination and giving complainant appeal rights
to the Merit Systems Protection Board (MSPB). Therefore, complainant
also appealed the agency's decision to the MSPB. Based upon the appeal
before the MSPB, the EEOC AJ dismissed complainant's request for a
hearing for lack of jurisdiction. The dismissal noted that if the
MSPB determined that it lacked jurisdiction or refused jurisdiction,
complainant may re-file with the Commission.
On May 29, 2002, the MSPB AJ dismissed complainant's appeal for lack of
jurisdiction finding that she did not establish that the agency's actions
amounted to constructive discharge. Instead, the MSPB AJ determined
that complainant resigned based on her inability to return to work.
Complainant filed a motion with the EEOC AJ requesting a hearing.
Complainant also noted in her motion that she wished to amend her
complaint to include her claim that she was forced to take a disability
retirement and that she was subjected to a hostile work environment.
The EEOC AJ denied complainant's motions. As to amending her complaint,
the EEOC AJ found that complainant's claim of constructive discharge
included the claims raised in her amendment. Therefore, the EEOC AJ
determined that an amendment is not required. As to her request for a
hearing, the EEOC AJ found that the MSPB decision issued a determination
on the merits. Accordingly, the EEOC AJ dismissed the matter before
him stating that it had already been adjudicated.
The agency's final action implemented the EEOC AJ's decision. This appeal
follows. Complainant contends, among other things, that the MSPB AJ's
decision did not address complainant's evidence in the EEO context.
Further, complainant, through counsel, requests that the Commission
remand the case at hand for a hearing. The agency stands on the record
and requests that we affirm its final action implementing the EEOC
AJ's decision.
Upon review, we find that the request for a hearing should have been
granted. Complainant filed a mixed complaint. She was correctly given
appeal rights to the MSPB, not EEOC. When the MSPB AJ dismissed the
matter for lack of jurisdiction, the complaint becomes a "non-mixed"
matter pursuant and is adjudicated under 29 C.F.R. � 1614.109 et seq.
Therefore, the request for a hearing should have been granted.
Further, we find that the EEOC AJ erred in determining that the complaint
had been addressed on the merits by the MSPB AJ. Upon review, we find
that the MSPB AJ did not render a decision on complainant's claim that
she was subject to a hostile work environment in violation of Title
VII and/or ADEA which resulted in her application for a disability
retirement.<1> Accordingly, we find that the matter should be remanded
to the agency for a hearing before an EEOC AJ.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final action and remands the matter to the agency in accordance
with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Miami District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 2, 2003
__________________
Date
1 Complainant's affidavit states that the Plant Manager gave her
a promotion application for a detail in order to get her out of her
position so that he could place a younger, male employee in complainant's
Manager position. She also averred that he ignored her and made her
work very difficult because she could not run her operations without
contact with the Plant Manager. Complainant stated that he would blow
up at her and challenged her everyday activities. She argued that the
Plant Manager's conduct caused her anxiety and she began to suffer from
major depression which resulted in her disability retirement.