0320140071
10-22-2014
Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Petition No. 0320140071
MSPB No. CH-0752-14-0207-I-1
Agency No. 4J-481-0078-13
DECISION
On August 12, 2014, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner filed a mixed case complaint with the Agency alleging that it discriminated against him on the bases of sex (male) and disability when, effective March 8, 2013, he was removed from his City Carrier position.
On December 10, 2013, the Agency issued a final decision ("Final Agency Decision-Mixed Case") finding no discrimination. The Agency stated that the decision was being issued in accordance with 29 C.F.R. � 1614.302(d) and advised Petitioner of his right to appeal the matter to the MSPB within 30 days of receipt of the final decision. On January 3, 2014, Petitioner appealed the matter to the MSPB.
On January 30, 2014, an MSPB Administrative Judge (AJ) issued an initial decision dismissing Petitioner's appeal as untimely filed without good cause for the filing delay. Specifically, the MSPB AJ found that Petitioner should have filed his appeal no later than April 7, 2013 - within 30 days of the effective date of his removal. The MSPB AJ noted that Petitioner did not respond to a January 10, 2014 timeliness order. Thereafter, Petitioner sought review by the full Board.
On July 21, 2014, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's initial decision. Specifically, the Board noted Petitioner's argument that he had timely appealed the Agency's final decision on his mixed case complaint. The Board, however, declined to consider Petitioner's argument because he had raised it for the first time in his petition and did not present it to the MSPB AJ in response to the January 10, 2014 timeliness order. The Board advised Petitioner of his right to appeal the matter to the EEOC. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In his petition, Petitioner argued that he timely appealed the Agency's final decision on his mixed case complaint to the MSPB. In addition, Petitioner argued that the Agency "must share the burden for the confusion in this case" because it did not submit evidence to the MSPB AJ on the timeliness issue, despite language in the MSPB AJ's January 10, 2014 timeliness order requiring it to do so.1 Further, Petitioner noted that he was pro se and appealing for the first time, whereas the Agency was represented by legal counsel familiar with federal employment law. Moreover, Petitioner argued that the result of the MSPB's decision "in effect denies [him] his day in court." Finally, Petitioner requested that we vacate or reverse the MSPB's decision so that he can be afforded the opportunity to present his case on the merits.
The Agency did not file an opposition to Petitioner's petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. Here, the MSPB dismissed Petitioner's appeal of his mixed case complaint on procedural grounds. The Commission has no jurisdiction over procedural matters of the MSPB. Because the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case. Consequently, the Commission will DENY consideration of the petition for review.
The Commission, however, takes note of the unique circumstances of this case. Here, the record is clear that Petitioner filed a mixed case complaint with the Agency, that the Agency issued a final decision on his mixed case complaint, and that Petitioner timely appealed the matter to the MSPB on January 3, 2014 - within 30 days of his receipt of the Agency's December 10, 2013 final decision. The MSPB AJ, however, did not recognize that Petitioner was appealing the Agency's final decision on his mixed case complaint instead of filing a new mixed case appeal. Because neither Petitioner nor the Agency advised the MSPB AJ that the matter involved a mixed case complaint, the MSPB AJ incorrectly concluded that Petitioner's appeal was untimely filed. Given the lack of communication by both Petitioner and the Agency, and in the interest of judicial fairness, we will REMAND Petitioner's complaint to the Agency for the issuance of a 29 C.F.R. � 1614.108(f) notice giving him the right to elect between a hearing before an EEOC AJ or an immediate final decision pursuant to � 1614.110.
CONCLUSION
Accordingly, it is the decision of the Commission to DENY consideration of Petitioner's petition for review and to REMAND Petitioner's complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
Within 30 calendar days of its receipt of this decision, the Agency shall issue Petitioner a
29 C.F.R. � 1614.108(f) notice giving him the right to elect between a hearing before an EEOC AJ or an immediate final decision pursuant to � 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.
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 (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
___10/22/14_______________
Date
1 We do not have a copy of the MSPB AJ's January 10, 2014 timeliness order.
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0320140071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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