0120122990
01-04-2013
Wanda Billingsley, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Wanda Billingsley,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122990
Agency No. 1E-981-0018-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 6, 2012, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Seattle Processing and Distribution Center facility in Seattle, Washington.
On June 14, 2012, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), disability (shoulder), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Specifically, she alleged discrimination, when, from March 7, 2012 to March 30, 2012, Complainant's supervisor cut Complainant's hours from eight hours per day to 5.5 hours per day and sent her home on March 31, 2012.
The pertinent record shows that on March 31, 2012, the Agency notified Complainant that she should not report back for duty because the Agency was unable to identify adequate available work for her within her medical restrictions. On April 30, 2012, Complainant filed an appeal before the Merit Systems Protection Board (MSPB). She filed the subject EEO complaint with the Agency 45 days later.
In her MSPB appeal, Complainant referred to the Agency's reduction of her hours from March 7, 2012 to March 28, 2012 to 5.5 hours, then to 3 hours, and to then to no hours per day, effective March 31, 2012.
The Agency dismissed the EEO complaint, pursuant to 29 C.F.R � 1614.107(a)(4). The Agency concluded that this was a mixed-case appeal and further reasoned that Complainant was precluded with filing an EEO complaint because she elected to proceed first with the MSPB.
The instant appeal followed.
ANALYSIS AND FINDINGS
Here, Complainant contends that the Agency erred in labeling this matter as a mixed case appeal. She contends that her MSPB appeal pertained to the Agency's March 31, 2012 notification. Complainant argues that her EEO complaint is completely different and specific with regard to the period of March 7, 2012 to March 30, 2012. She also maintains that her EEO complaint alleged bases not raised in the MSPB complaint, including retaliation and discrimination on the basis of disability. Accordingly, Complainant requests that the Commission reverse the Agency's dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB. A mixed case appeal is an appeal filed with the MSPB in which the aggrieved alleges than an agency action was effected, in whole or in part, because of discrimination on the bases of race, color, religion, sex, national origin, disability, age, or genetic information. The regulation at 29 C.F.R. � 1614.302(b) provides that an aggrieved person may file a mixed case complaint with an agency or appeal on the same matter with the MSPB, but not both.
The record reveals that Complainant appealed the reduction of her hours to the MSPB. She specifically explained that the Agency reduced her hours to 5.5 hours, then to 3 hours, and to then to no hours per day, effective March 31, 2012. While we recognize that Complainant was challenging the Agency's failure to follow its procedures as an arbitrary and capricious failure to restore, she was alleging that the agency actions were effected, wholly or partially, due to the Agency's alleged failure to accommodate her medical restrictions and reprisal.
Further, we find that the reduction in hours is inextricably intertwined with her reprisal claim and her disability claim that the Agency failed to identify and provide her with available work within her medical restrictions. This is the same matter that she presented in the MSBP.
Upon review, we find that Complainant's complaint was properly dismissed for her prior election to raise this mixed-case issue with the MSPB.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, 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
January 4, 2013
__________________
Date
2
0120122990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122990