0120130886
05-16-2013
Tamara D. Thomas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Tamara D. Thomas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120130886
Hearing No. 560-2012-00047X
Agency No. 4J-630-0148-10
DECISION
Complainant filed an appeal with this Commission from the AJ's dismissal of her hearing request on November 19, 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Southwest Station facility in St. Louis, Missouri.
On September 21, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and race (African-American) when, on May 11, 2010, she received a job offer of one hour per day of work and, on July 11, 2010, she became aware that management had been providing another employee more hours and days than she was receiving.
The Agency determined that the complaint involved a claim of disability-based discrimination that was identical to the claim raised in McConnell et. al. v. U.S. Postal Serv. (Agency No. 4B-140-0062-06). As such, the Agency placed Complainant's claim of disability-based discrimination in abeyance to be subsumed into the McConnell class action.
The Agency, however, accepted Complainant's claim of race-based discrimination for investigation. At the conclusion of the investigation, the Agency issued its final decision on February 1, 2011, finding no discrimination. The Agency noted that the matter constituted a "mixed case complaint" and provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB).
Complainant filed an appeal with the MSPB, as well as requested a hearing before an EEOC Administrative Judge. The MSPB appeal was resolved by settlement agreement dated September 19, 2011. That agreement stated, in pertinent part:
The parties agree that this Stipulation and Settlement Agreement fully resolves the issues on appeal before the Merit Systems Protection Board (MSPB) as settled, except that [Complainant] retains the right to pursue her EEO claim of discrimination as set for in EEOC case No. 4-J-630-0148-10 before the EEOC [emphasis added].
Subsequent to the settlement agreement, the EEOC Administrative Judge (AJ) assigned to EEOC case No. 4-J-630-0148-10 dismissed the hearing by order dated November 19, 2012. Complainant appealed the dismissal asserting that the parties expressly agreed that the EEOC case could proceed.1 Therefore, Complainant claimed that the dismissal of the hearing was not appropriate.
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). In a mixed case, the hearing is provided by the MSPB, not the EEOC. Complainant may later appeal the MSPB's decision on his or her discrimination claims to EEOC pursuant to 29 C.F.R. � 1614.303.
In the instant case, the parties have settled Complainant's MSPB. However, the parties also agreed, with the approval of the MSPB, that Complainant's discrimination claim should be adjudicated in the EEO complaint process. As such, due to the unique circumstances of the instant matter, we determine that Agency No. 4-J-630-0148-10 is effectively no longer a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the complaint is remanded to the Agency to be processed as an EEO complaint. See generally Schmitt v. Dept. of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii).
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Commission VACATES the Agency's February 1, 2011 final decision and REMANDS the matter to the Agency in accordance with this decision and the Order below.
ORDER
The Agency shall submit this decision, a request for a hearing and the complaint file to the Hearings Unit of the EEOC's St. Louis District Office 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 (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
May 16, 2013
__________________
Date
1 It appears that the Agency did not issue a final order adopting the AJ's November 2012 dismissal decision, most likely because it had already issued a final decision on the merits of the complaint on February 1, 2011. Therefore, the AJ's dismissal became the final decision on this matter. See 29 C.F.R. � 1614.109 (i).
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0120130886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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