0120093390
12-03-2009
Michael J. Lutz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Michael J. Lutz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093390
Agency No. 4J481002303
DECISION
On July 29, 2009, complainant filed a petition with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final order of
the Merit Systems Protection Board (MSPB) upholding his demotion
from postmaster to mail handler effective December 14, 2002, and
finding no reprisal discrimination.1 In his petition, complainant
discusses EEO complaint agency number 4J481002303 dated February 19,
2003, which was closed by a settlement agreement dated April 22, 2003.
He writes that despite the settlement agreement being rescinded, and
his asking the agency to reinstate his complaint, the agency as of the
filing of the instant petition has not done so. The record in petition
number 0320100003, with documentation complainant submits on appeal,
is sufficient to address the claim of whether the agency properly
closed complaint number 4J481002303 without providing appeal rights.
We construe this to be an appeal from complainant's complaint alleging
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and accept the appeal.
29 C.F.R. � 1614.405(a).
Complainant filed EEO complaint 4J481002303 which the agency defined as
whether he was discriminated against based on his sex (male), disability
and reprisal for prior EEO activity when (1) on September 3, 2002, he
was taken off his postmaster position, (2) on December 10, 2002,2 he was
demoted from postmaster to mail handler, (3) he was not accommodated in
his mail handler position for his back impairment, and (4) he was denied
his merit pay and was not given any opportunity to appeal that decision.
On January 2, 2003, prior to filing this complaint, complainant appealed
his demotion to the MSPB claiming reprisal for prior EEO activity.
On April 22, 2003, complainant and the agency entered into a settlement
agreement closing the MSPB appeal and EEO complaint 4J481002303.
The agency agreed, in part, to pay complainant $5,500, and his attorney
$6,000 for fees, and did so.
On June 3, 2003, the agency issued a final agency decision dismissing
the complaint under 29 C.F.R. � 1614.107(a)(4) on the grounds that
complainant elected to appeal the same or similar actions to the MSPB,
and because he settled the appeal and complaint on April 22, 2003.
On May 15, 2007, the United States Court of Appeals for the Federal
Circuit found that the agency breached the settlement agreement
and remanded the case back to the MSPB for further proceedings.
Lutz v. United States Postal Service, 485 F.3d 1377 (Fed. Cir. 2007).
On remand, the MSPB rescinded the settlement agreement and reinstated
complainant's MSPB appeal on his demotion. Lutz v. Unites States Postal
Service, 108 M.S.P.R. 695 (May 28, 2008).
By letter dated June 16, 2008, complainant requested the agency to
reinstate complaint 4J481002303 from the point processing ceased.
He explained that the settlement agreement closing the complaint
was rescinded. By reply dated June 23, 2008, the agency declined to
reinstate the complaint. It explained that the complaint was inextricably
intertwined with the demotion appeal pending before the MSPB. It also
found that because complainant was removed in June 2005 (after his
demotion to mail handler), the complaint was moot. It further found that
the agency would not agree to reinstate the complaint until complainant
repaid the $11,500 the agency paid him and his attorney under the
settlement agreement. The reply did not contain appeal rights.
As a condition precedent to conducting a hearing on the demotion appeal,
the MSPB ordered complainant to repay to the agency the above $11,500.
Complainant did so in October 2008, and the MSPB then resumed processing
the demotion appeal. Following a hearing, the MSPB upheld the demotion
and found no reprisal discrimination. The MSPB appeal only involved the
demotion, and the MSPB did not rule on any other claim. Under 29 C.F.R. �
1614.302(c)(ii), where an MSPB Administrative Judge finds that the MSPB
does not have jurisdiction over a matter the agency shall recommence
processing a mixed case complaint which was previously dismissed because
an election was made to file an appeal with the MSPB. As of July 29,
2009, according to complainant, the agency has not reinstated complaint
4J481002303.
As complainant's appeal was styled as a petition from the MSPB final
order on his demotion appeal, the agency's opposition brief did not
address complainant's claim that he is entitled to have complaint
4J481002303 reinstated. Given that the appeal to the MSPB only
concerned the demotion and the MSPB did not rule on any other matter,
that the settlement agreement closing complaint 4J481002303 has been
rescinded, and that complainant repaid the referenced $11,500, we find
that the agency must address complainant's request for reinstatement of
complaint 4J481002303. Accordingly, the agency shall comply with the
order below.
ORDER
The agency is ordered to issue a letter to complainant accepting
all or part of complaint 4J481002303 and resuming processing from the
point processing ceased under 29 C.F.R. Part 1614.108, or issue a final
decision, appealable to the EEOC, dismissing the entire complaint.3 Prior
to taking action, the agency shall send complainant a letter providing him
a 20 calendar day opportunity to clarify the claims in his complaint and
to make any arguments as to why it should be reinstated and not dismissed
on procedural grounds. The letter shall provide complainant with an
address for doing so. The agency shall send complainant the opportunity
letter within 30 calendar days after this decision becomes final.
A copy of the agency's opportunity letter to complainant must be sent
to the Compliance Officer as referenced below.
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
December 3, 2009
__________________
Date
1 The petition is being processed under EEOC docket petition number
0320100003.
2 The demotion was effective December 14, 2002.
3 In so doing, the agency need not address complainant's demotion claim
since complainant elected to file an appeal with the MSPB on the matter,
and it was adjudicated on the merits by the MSPB.
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0120093390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093390