0120110090
02-09-2011
Matthew G. Tubby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Matthew G. Tubby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120110090
Agency No. 1K-271-0027-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 19, 2010, dismissing his 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.
The salient facts preceding Complainant's pursuit of the instant formal complaint are as follows. The record reflects that Complainant was issued a notice of proposed removal in February 2009. By notice dated March 23, 2009, the Agency informed complainant that the removal was to be effective on March 28, 2009. Complainant also filed an appeal with the Merit Systems Protection Board in March 2009; however, Complainant withdrew his request for a hearing.
In the EEO Counselor's Report, the Agency stated that Complainant filed "an informal EEO complaint" in March 2009 regarding the removal, but that he did not file a formal complaint thereafter. It appears that the removal action was placed in some state of abeyance, as Complainant filed a grievance, and arbitration was held on April 17, 2010. On April 17, 2010, an arbitrator indicated that Complainant's "grievances are denied. Management having established the existence of just cause in the meting out of the aggrieved disciplinary action." The record reflects that the Agency issued a Notification of Personnel Action, SF-50, with the nature of the personnel action identified as "Removal" and identifying the effective date of the personnel action as "04-17-2010."
On June 15, 2010, Complainant initiated EEO contact and after informal efforts to resolve his concerns were unsuccessful, he filed the instant formal complaint on July 30, 2010 regarding the removal, on the basis of race.
On August 19, 2010, the Agency issued a final decision. The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency found that Complainant's initial EEO contact of June 15, 2010, was "approximately 455 days after you were issued the decision letter on your removal or 59 days from the effective action of the removal."
The Agency dismissed the instant formal complaint on the grounds that the matter raised therein was raised in a previously filed EEO complaint, identified as Case No. 1K-271-0012-09. The Agency expressly noted that Complainant was given a Notice of Right to File a Formal Complaint on this matter, but the he did not file a formal complaint.
On appeal, Complainant argues that an arbitrator's decision regarding his proposed termination was issued on April 17, 2010; that the arbitration decision was sent to the union office, and was withheld by the union for 28 days. Complainant stated that he only became aware of the document on May 14, 2010, and was "appalled to find out that this is the only way that I was notified by anyone. . . that I had been terminated by the USPS."
The record also contains a copy of an arbitration decision dated April 17, 2010, finding that agency management had established the existence of just cause in issuance of the subject disciplinary action.
The record in this case contains a copy of a letter dated May 18, 2010. Therein, the Agency provided Complainant with information relating to annual and sick leave, and the thrift savings plan; and that this information "is provided as a result of your separation from [the Agency]."
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a) (2), on the grounds of untimely EEO Counselor contact. The record discloses that the alleged discriminatory event, the effective date of Complainant's removal, occurred on April 17, 2010. There is nothing in the record rebutting Complainant's assertion that he was not aware of this effective action until mid-May 2010, thereby rendering timely his EEO contact on June 15, 2010.
Moreover, the Commission finds that the instant formal complaint was improperly dismissed on the alternative grounds that a prior complaint had been filed on the same matter. EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides in pertinent part that the Agency shall dismiss a complaint that has been decided by the Agency or Commission. The Agency acknowledges that no formal complaint was ever filed for Case No. 1K-271-0012-09.
Accordingly the Agency's decision to dismiss the instant formal complaint on both grounds discussed above is REVERSED. The formal complaint 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 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 (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
February 9, 2011
__________________
Date
2
0120110090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110090