0120122733
10-17-2012
Lori D. Buss, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Lori D. Buss,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122733
Agency No. 4E970005411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 2, 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 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 Clerk at the Agency's Mt. Hood DDC facility in Portland, Oregon.
On March 16, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (51) when: (1) from April 6, 2011, she was denied detail and training opportunities; (2) on May 17, 2011, she was issued a notice of proposed reduction in pay, followed by a letter of decision reducing her pay, with an effective date of August 3, 2011.
The record shows that Complainant contacted an EEO counselor concerning these matters in June 2011. In addition, on August 9, 2011, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) on the same matters. When, on August 17, 2011, she received a notice of right to file a formal EEO complaint, Complainant informed the Agency that she was waiting for the MSPB to determine its jurisdiction over the matter before filing a formal EEO complaint.
On November 16, 2011, the MSPB issued an initial decision denying jurisdiction over the matter. Complainant appealed the initial decision to the full Board. On March 2, 2012, the MSPB upheld the initial decision denying jurisdiction. Complainant then filed her formal EEO complaint on March 16, 2012.
On April 2, 2012, the Agency issued its decision on the matter, dismissing the complaint for failure to file the formal complaint in a timely manner. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
In her appeal, Complainant notes that she notified the Agency within the requisite timeframe that she was delaying the filing of her formal EEO complaint until the MSPB made a decision on jurisdiction. She asserts she was told that her EEO complaint would be held in abeyance until a final decision was made by the MSPB.
In response to Complainant's appeal, the Agency concedes that it told Complainant that she must file her formal complaint within 45 days of the date the MSPB determined it did not have jurisdiction.1 The Agency argues that Complainant was informed of this when she received the November 16, 2011 initial decision, but delayed in filing her formal complaint until March 16, 2012. Complainant counters that she filed her formal EEO complaint less than two weeks after she received the MSPB's final decision on jurisdiction, and points to the dispute resolution specialist's report which states, "Counselee filed an MSPB on 8/9/11 which was dismissed for lack of jurisdiction on 3/2/12."
In the instant case, it is undisputed that Complainant was told that the filing of her formal EEO complaint could be held in abeyance until it was determined whether the MSPB had jurisdiction over the matter. Complainant had a right to appeal the initial decision of the MSPB to the full Board and did so. When the Board upheld the denial of jurisdiction, Complainant promptly filed her formal complaint. Under the circumstances of this case, we find that that Complainant timely filed her formal EEO complaint once the MSPB issued a final decision on the matter of jurisdiction and the Agency erred in finding otherwise.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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
October 17, 2012
__________________
Date
1 This position is contrary to that stated in its final decision. In its decision, the Agency stated Complainant did not file her formal complaint within 15 days of receiving the notice on August 17, 2011.In its response the Agency admits its error.
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0120122733
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122733