01984636
08-06-1999
Paul W. Lawson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paul W. Lawson v. United States Postal Service
01984636
August 6, 1999
Paul W. Lawson, )
Appellant, )
)
v. ) Appeal No. 01984636
) Agency No. 1-H-301-1062-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On May 21, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on May 8, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant alleged that he
was subjected to discrimination on the bases of race (African-American)
and religion (Seventh-Day Adventist) when on March 5, 1996, appellant
received a notice of reduction and reassignment.
In a FAD dated April 3, 1997, appellant's complaint was dismissed for
failure to state a claim. In EEOC Appeal No. 01974363, the Commission
reversed the agency's decision, and remanded appellant's complaint for
further processing. In a separate FAD, dated May 5, 1998, the agency
again dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for stating the same claim already pending with
the agency. Specifically, the agency found that the reduction and
reassignment were incorporated into the investigation of Agency Number
1-H-301-1063-96 (complaint-2).
A review of the record reveals that appellant filed his formal
complaint in both cases on September 26, 1996. Further, the record
contains a notice of processing for complaint-2, listing the issue to be
investigated as whether appellant was discriminated against on the bases
of race and religion when on April 9, 1996, appellant was issued a notice
of removal. The record also contains a copy of the notice of reduction
and reassignment, dated March 4, 1996, and the notice of removal, dated
April 8,1996. In the March 4, 1996 notice, appellant was informed that he
passed the custodian examination, and was offered a custodial position.
The April 8, 1996 notice explained that appellant was being removed
because he failed to accept the custodian position offered on March 4,
1996, and could not perform any other position because appellant failed
to pass any other examinations. The record also indicates, however,
that appellant filed a grievance concerning his removal which was settled
on May 21, 1998, by giving appellant the custodial job which was offered
on March 4, 1996.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The Commission finds that the March 5, 1996 reduction and reassignment is
inextricably intertwined with appellant's April 8, 1996 notice of removal.
Accordingly, the notice of reduction and reassignment alleged in the
present complaint involves the same claim addressed in complaint-2.
Nonetheless, appellant's complaint cannot be dismissed at this time;
it must be held in abeyance. The Commission notes that complaint-2 is
a mixed case complaint. Accordingly, appellant does not have a right
to an administrative hearing from an EEOC Administrative Judge (AJ),
and the agency should issue a final decision within forty-five (45) days
of completing its investigation. See EEOC Regulation 29 C.F.R. �1614.302
et seq. Appellant has the right to appeal the agency's decision regarding
complaint-2 to the Merit Systems Protection Board (MSPB), but not to the
Commission. Id. On appeal, the MSPB has the authority to decide whether
the issue raised in the present complaint is within its jurisdiction;
and if the MSPB declines to address the March 4, 1996 notice of reduction
and reassignment, then the issue will have to be addressed separately
within the EEO process. Therefore, the present complaint shall be held in
abeyance pending the MSPB's jurisdictional decision. If the MSPB declines
to address the matter set forth in the present complaint, then processing
of the present appeal shall resume. If the MSPB addresses the matter,
then the allegation shall be dismissed pursuant to 29 C.F.R. �1614.107(d).
See EEOC Regulation 29 C.F.R. �1614.302(c)(2)(iii).
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and appellant's complaint
is REMANDED for the reasons set forth herein.
ORDER
The agency is ORDERED to hold appellant's complaint in abeyance pending
the outcome of Agency Number 1-H-301-1063-96 (complaint-2), as follows:
If appellant fails to appeal the agency's FAD for complaint-2 to the
MSPB within the statutory period in accordance with 29 C.F.R. �1614.302
et seq., then the agency shall issue a FAD dismissing the present
complaint pursuant to 29 C.F.R. �1614.107(d), within forty-five (45)
days of appellant's failure to timely appeal complaint-2.
If appellant appeals the agency's FAD for complaint-2 to the MSPB, and
the MSPB accepts jurisdiction of the matters addressed in the present
complaint, then the agency shall issue a FAD dismissing the present
complaint pursuant to 29 C.F.R. �1614.107(d), within 45 days of receiving
the MSPB's decision regarding the jurisdictional issue.
If, however, appellant appeals the agency's FAD for complaint-2 to
the MSPB, and the MSPB declines to address the matters raised in the
present complaint, then the agency shall proceed with the processing of
the present complaint in accordance with 29 C.F.R. �1614.108. Further,
the agency shall notify appellant of the continued processing of his
complaint within 45 days of receiving the MSPB's decision regarding the
jurisdictional issue.
Additionally, the agency shall acknowledge to appellant in writing
within thirty (30) days of the date this decision becomes final, that
it has received the remanded allegation, and is holding the allegation
in abeyance pending the outcome of complaint-2. A copy of the agency's
letter of acknowledgment to appellant and a copy of the agency's FAD or
notice of processing must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
August 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations