U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jermaine H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120181295 Agency No. 1G-331-0002-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 22, 2017, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Royal Palm Processing and Distribution Center in Miami, Florida. On February 27, 2017, the Manager of Distribution Operations placed Complainant in a non-duty, non-pay status because of an allegation that he had a firearm in his vehicle on Agency property. On April 19, 2017, the Agency issued Complainant a Notice of Proposed Removal for Unacceptable Conduct. Complainant contacted an EEO Counselor on May 16, 2017. According to "Case Details" for Complaint Number 1G-331-0054-17, Complainant alleged that the Agency discriminated against him on the basis of race (Black) when it issued the Notice of Proposed Removal. Complainant withdrew his request for counseling on June 5, 2017. By letter dated June 26, 2017, the Senior Plant Manager sustained the Notice of Proposed Removal.2 On August 10, 2017, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) challenging his removal. He alleged that the Agency discriminated against him and subjected him to disparate treatment when it terminated his employment. He also alleged that "a white female . . . and a black married male . . . brought firearms onto Postal property and were not terminated." On September 21, 2017, an MSPB Administrative Judge issued an initial decision dismissing Complainant's appeal for lack of jurisdiction on the ground that Complainant was not an Agency employee with adverse-action appeal rights to the MSPB. Complainant was given the right to file a petition for review with the full Board by October 26, 2017. It appears that he did not do so. Complainant again contacted an EEO Counselor on October 6, 2017. In his Information for Pre-Complaint Counseling form, Complainant alleged that the Agency discriminated against him "because of race and marital status."3 He asserted that he was "taken off the clock" because of a firearm in his vehicle; that he received an April 19, 2017, Notice of Proposed Removal; and that the Agency treated him differently from the way that it treated a white female and a black male, who "were allowed to keep their jobs." He requested reinstatement, compensatory damages, and benefits. On January 2, 2018, Complainant signed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race, color, and sex. He stated that he "was placed off the clock" after a firearm was discovered in his vehicle and that the Agency treated other employees more favorably. According to Complainant, a white female and two black males were "given a second chance at employment." Complainant asked, "to be returned to full duty status with back pay and all associated benefits and compensatory damages." The Agency issued a final decision dismissing Complainant's complaint. The Agency characterized the complaint as alleging discrimination based on race, color, and sex when: (1) on February 27, 2017, Complainant was placed on Emergency Placement; and (2) on April 19, 2017, Complainant was issued a Notice of Proposed Removal. The Agency dismissed both allegations pursuant to 29 C.F.R. § 1614.107(a)(2) on the ground that Complainant did not contact an EEO Counselor within 45 days of the alleged discrimination. The Agency also dismissed allegation (2) pursuant to 29 C.F.R. § 1614.107(a)(1) on the ground that it raised the same claim that Complainant raised in Complaint Number 1G-331-0054-17. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant states that he withdrew Complaint Number 1G-331-0054-17 because he wanted the MSPB to hear his claim. He argues that he filed the instant complaint after becoming aware that two other employees who committed the same infraction that Complainant committed "were given their jobs back." He claims that he "became aware of this new information in September 2017." ANALYSIS AND FINDINGS As an initial matter, we find that the Agency has not characterized Complainant's complaint accurately. Although Complainant's submissions referred to the Notice of Proposed Removal and his placement "off the clock," they also referred to other employees who remained employed. Further, he expressly requested reinstatement and back pay. Thus, a fair reading of Complainant's complaint establishes that he is challenging the Agency's ultimate decision to terminate his employment. Moreover, when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of Treasury, EEOC Request No. 05910190 (Feb. 15, 1991). Such a merger has now happened in this case--the proposal to remove no longer exists because it has merged with the actual removal action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that an agency shall dismiss a complaint or a portion of a complaint "[t]hat fails to comply with the applicable time limits contained in §§ 1614.105, 1614.1906, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c)." Pursuant to 20 C.F.R. § 1614.105(a)(1), an aggrieved person must contact an EEO Counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action." Further, where an individual files a mixed-case appeal with the MSPB, and the MSPB dismisses the appeal for jurisdictional reasons, the agency must promptly notify the individual of his or her right to contact an EEO counselor and to file an EEO complaint. The date on which the individual filed the MSPB appeal is deemed to be the date of the initial contact with the EEO counselor. 29 C.F.R. § 1614.302(b). In this case, Complainant filed an MSPB appeal challenging his removal on August 10, 2017, and the MSPB dismissed the appeal for lack of jurisdiction. Complainant then contacted an EEO Counselor at the Agency. Pursuant to 29 C.F.R. § 1614.302(b), August 10, 2017, is deemed to be the date of the initial EEO Counselor contact. Because August 10, 2017 is 45 days from June 26, 2017, Complainant initiated contact in a timely manner. We find, therefore, that the Agency erroneously dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2). Finally, to the extent that the Agency dismissed the complaint as raising the same claim that Complainant raised in Complaint Number 1G-331-0054-17, the Agency erred. As noted above, the instant complaint challenges the Agency's ultimate decision to terminate Complainant's employment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal decision and REMAND the complaint back to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 ____4/3/18______________ 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 Complainant submitted a copy of the June 26, 2017, letter on appeal. 3 The laws enforced by the EEOC do not prohibit discrimination based on marital status. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181295 6 0120181295