[Redacted], Daisy B., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Petition No. 2023000203 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daisy B.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Petition No. 2023000203 MSPB No. CH-0353-13-0311-I-2 DENIAL OF CONSIDERATION On October 13, 2022, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a final order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we DENY consideration of the petition and REMAND the matter to the Agency for further processing BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Data Collection Technician, PS-07, at the Agency’s Chicago Main Post Office in Chicago, Illinois. On December 28, 2011, Petitioner filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (left knee meniscus tear), age (over 40), and reprisal for prior protected EEO activity under Title VII, the Rehabilitation Act, and the ADEA when: 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2023000203 2 1. On October 4, 2011, Petitioner returned to work from a compensable injury and then was sent home for lack of work within her restrictions. 2. In her paycheck on November 8, 2011, she received leave without pay for one week instead of paid annual leave. The Agency subsequently accepted these issues for investigation, and at Petitioner’s request, added retaliation as basis. Thereafter, Petitioner requested an additional amendment to her complaint regarding a third claim of discrimination based on sex, disability, age, and reprisal when: 3. On January 6, 2012, she attempted and was denied return to work after recovery from a compensable injury. At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ). Petitioner requested a hearing. In accordance with Petitioner’s request, the Commission assigned an AJ to adjudicate the matter. On November 9, 2012, the Agency filed a motion, seeking to dismiss the hearing request and remand the matter to the Agency for processing as a mixed case pursuant to 29 C.F.R § 1614.302. The assigned EEOC AJ ultimately granted the Agency’s motion on December 12, 2012, and ordered the Agency to process the matter as a mixed case. In dismissing the matter, the EEOC AJ specifically advised Petitioner that if the Merit Systems Protection Board (MSPB) found no jurisdiction to adjudicate the matter, Petitioner could file a new request for hearing pursuant to 29 C.F.R. § 1614.302. In accordance with the EEOC AJ’s order, the Agency issued a final agency decision on the merits of the mixed case complaint on January 24, 2013. The Agency entered a finding of no discrimination and provided Petitioner with appeal rights to the MSPB. The MSPB AJ assigned to the case held a hearing on January 25 and March 15, 2016, and issued an initial decision on May 10, 2016, which concluded that the MSPB had no jurisdiction to adjudicate the matter. Petitioner subsequently appealed the initial decision to the full Board. While the full Board modified the MSPB AJ’s analysis, the MSPB ultimately upheld the MSPB AJ’s finding of no jurisdiction on September 13, 2022. Petitioner subsequently filed the instant petition for review pro se on October 13, 2022, and requested that her EEO complaint be reinstated and adjudicated by an EEOC AJ. On November 10, 2022, Petitioner filed a request for extension of time “to include additional documents and to obtain legal representation.” That same day, we granted Petitioner’s request and extended the period to file a statement or brief until November 29, 2022. In our response, we specifically advised Petitioner that “no further extensions will be granted.” 2023000203 3 On November 29, 2022, Petitioner filed an emergency motion to extend the period to file a statement or brief because she had difficulties obtaining legal representation through her prepaid legal services membership. The following day, we denied Petitioner’s motion, as our November 10, 2022, letter had specifically advised Petitioner that “no further extensions will be granted.” Complainant ultimately obtained legal representation sometime in December 2022, and her new attorney filed a letter dated December 14, 2022, asking us to exercise our discretion to extend the period to file a petition.2 On December 15, 2022, the Agency filed a brief opposing the petition, as “Petitioner has failed to set forth in her petition any reason why the Board’s decision is incorrect based on fact or law, either in whole or in part, with regard to the issues of discrimination.” The Agency alternatively argued that Petitioner was not subjected to discrimination as alleged. Through her attorney, Petitioner filed a reply dated December 20, 2022, arguing that the Agency’s brief was premature because “as of yet, no appeal has been filed by [Petitioner] that could be responded to.” Petitioner maintained that once she is allowed to file, the dispute “may be heard between all sides fairly and finally, and concluded on its merits, rather than disposed of summarily by technicalities.” ANALYSIS AND FINDINGS While we are certainly mindful of the parties’ contentions, we note that EEOC regulations specify that the Commission only has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any matters within the Commission's jurisdiction. As we lack jurisdiction to review the petition, this matter will be processed as a “non-mixed” case. See, e.g., Schmitt v. Dep’t of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep’t of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). As Petitioner previously filed a request for hearing with the Commission’s Chicago District Office and has renewed her request for a hearing in her petition, we shall order the Agency to submit a hearing request on Petitioner’s behalf. In accordance with these principles, Petitioner’s request for review is DENIED and Petition No. 2023000203 is hereby administratively closed. MSPB No. CH-0353-13-0311-I-2 is referred to the Agency for further processing as outlined below. 2 It appears that Petitioner’s attorney erroneously assumed that we had disallowed the petition for failure to submit it by November 29, 2022. 2023000203 4 ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency shall submit a renewed hearing request on behalf of Petitioner, as well as the complaint file and a copy of this appellate decision, to the Hearings Unit of the EEOC’s Chicago District Office. The Agency will provide written notification to the Compliance Officer at the address set forth below that the hearing request and complaint file have been transmitted to the designated Hearings Unit. The Agency shall also provide the Compliance Officer with the new hearing number within five (5) days of the assignment of the new hearing number. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2023000203 5 PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 5, 2023 Date