0120151150
04-26-2017
Bryce M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryce M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120151150
Agency No. 4F-926-0024-14
DECISION
On January 22, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 6, 2015, dismissing his complaint of unlawful employment discrimination in violation of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Window Clerk at the Agency's Ontario-Plaza Center Station in Ontario, California.
Following an on-the-job injury in November 2007, Complainant returned to work in August 2011, as a limited duty Sales and Service Associate 4 hours daily. Thereafter, on October 31, 2013, the Agency offered Complainant the same limited duty job with a different start time. In the offer the Agency listed a total of 8 hours daily, but gave a specified schedule of 4 hours daily at a different location. Complainant accepted this offer. The next day, on November 1, 2013, the Agency reissued the offer, correcting the typographical error of daily total hours. Complainant accepted this offer under protest because he wished to work 8 hours daily.2
On November 14, 2013, Complainant filed an appeal with the MSPB alleging that he was discriminated against based on his age and disability when, following an on-the-job injury, the Agency offered him a modified duty assignment on October 31, 2013, for 8 daily, but then denied him restoration by discontinuing this assignment on November 1, 2013, and mandating that he work only 4 hours daily.
While his appeal with the MSPB was pending, on December 2, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability, age (44), and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. On or about October 1, 2013, and ongoing he was denied reasonable accommodation by being denied work and work benefits; and,
2. On October 1, 2013, he became aware that the Agency improperly disclosed his medical information to the Office of the Inspector General as well as multiple management officials.
Issue 1 referred to Complainant not being provided 8 hours of work daily (he instead had four). In January 2014, the Agency accepted the complaint and assigned an investigator.
Meanwhile, in February 2014, the MSPB issued an Initial Decision dismissing Complainant's appeal. In summary, it reasoned that while Complainant is entitled to restoration rights of a partially recovered employee, the Agency's August 2011 limited duty offer of 4 hours daily did not deny him restoration since CA-17 Duty Status Report reflected he was medially restricted to working 4 hours daily. The MSPB found that the Agency's revision of the October 31, 2013 limited duty offer the next day from 8 hours to 4 hours daily to correct a typographical error did not rise to the level of a denial of restoration. It reasoned that Complainant's most current medical Duty Status Report at that time reflected he was restricted to working four hours daily. Complainant filed a petition for review of the Initial Decision with the Board.
While his petition was pending, the Agency conducted and completed the investigation on Complainant's complaint. On April 25, 2014, the Agency issued a transmittal letter to Complainant reflecting that it mailed him the investigation. Therein, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ), and advised he had 30 days from receipt of the letter to do so.
On July 2, 2014, the Agency mailed Complainant a notice that it was holding his complaint in abeyance because he filed an appeal with the MSPB on the same Agency action(s) raised in his complaint. It explained that under EEOC Regulation 29 C.F.R. � 1614.302(c), it must hold his complaint in abeyance until the MSPB made its final ruling on jurisdiction on his appeal.3
On September 19, 2014, the Board issued a Final Order denying Complainant's appeal for lack of jurisdiction. While correcting some language in its Initial Decision, the Board's Final Order at bottom denied jurisdiction for the same reasons as its Initial Decision. Complainant filed a petition for review the Final Order with this office. We denied the petition on November 19, 2014. EEOC Petition No. 0320150002 (Nov. 19, 2014).
On January 6, 2015, the Agency issued a FAD on Complainant's complaint finding no discrimination. In so doing, it wrote that following receipt of the transmittal of the investigative report to Complainant, he had 30 days to request a hearing before an Equal Employment Opportunity Commission AJ, and he did not give a response.
On appeal, Complainant requests a hearing on the issues raised via his EEO complaint and appeal to the MSPB. He argues that the Agency denied him a hearing without merit.
ANALYSIS AND FINDINGS
Where the agency or the MSPB questions the MSPB's jurisdiction over the appeal on the same matter as the complaint, the agency shall hold the mixed case complaint in abeyance until the MSPB rules on the jurisdictional issue, and notify the complainant that it is doing so. During this time, all time limitations for processing or filing under this part are tolled. If the MSPB finds that it does not have jurisdiction over the matter, the agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint. EEOC Regulation 29 C.F.R. � 1614.302(c)(ii).
When the Agency transmitted the report of investigation to Complainant with hearing rights, his appeal to the MSPB on largely the same matters was pending a final determination by the Board on jurisdiction. Given this, and the above regulation, we find Complainant did not waive his right to hearing before an Equal Employment Opportunity Commission AJ by failing to respond after receiving his notice his notice of right to request a hearing. Having a regulatory obligation to make an election between the MSPB and EEOC process, Complainant should not be penalized for not further pursing his EEO complaint while awaiting the MSPB's decision. Under the regulation, Complainant had the right to a reissued notice of right to request a hearing after the Board's Final Order denying jurisdiction over his appeal. The FAD is REVERSED.
ORDER
The Agency is ordered to rescind in writing its January 6, 2015 FAD. Thereafter, the Agency shall submit, on Complainant's behalf, a request for a hearing to the appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing so, and a copy of this decision. The Agency shall provide a copy of this submission to Complainant, as well as the Compliance Officer as referenced below. The Agency shall complete the above actions within 35 calendar days from the date of this decision.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 Complainant'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
April 26, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The information in this paragraph is derived from the Initial Decision of the Merit Systems of the Merit Systems Protection Board (MSPB or Board), SF-0353-14-0097-I-1 (Feb. 28, 2014), the Board's Final Order thereon (Sept. 19, 2014), and our decision in EEOC Petition No. 0320150002 (Nov. 19, 2014), which are in the record.
3 This letter was not appealable. Id. Nevertheless, on July 10, 2014, Complainant filed an appeal with this office because he wanted an Equal Employment Opportunity AJ to be appointed. We administratively closed the appeal, and by letter to the parties explained EEOC Appeal No. 0120151150, on the same matter, was pending.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120151150
6
0120151150