0320090060
09-03-2009
Alex Bilbrew, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alex Bilbrew,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090060
MSPB No. SF0752090451I1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of a Final Order 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.
In an appeal to the MSPB, petitioner alleged that he was discriminated
against on the basis of reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when he was suspended in
January 2009.
An MSPB Administrative Judge (AJ) issued an initial decision dismissing
the matter for lack of jurisdiction, finding that petitioner did not
show he was suspended for more than 14 days. Petitioner filed the instant
petition prematurely, but because the MSPB has since issued its decision
affirming its AJ's dismissal, the Commission accepts the petition.
When the MSPB has denied jurisdiction in such matters, the Commission
has held that there is little point in continuing to view the matter
as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the
case will be considered a "non-mixed" matter and processed accordingly.
See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126
(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883
(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance
with these principles, Petition No. 0320090060 hereby is administratively
closed, and the matter is referred to the agency for further processing
as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the agency
is required to process the allegations of discrimination pursuant to 29
C.F.R. � 1614.105 et seq. The agency shall notify petitioner of the right
to contact an EEO counselor within forty five (45) days of receipt of this
decision, and to file an EEO complaint, subject to 1614.107. The date on
which the petitioner filed the appeal with the MSPB shall be deemed the
date of initial contact with the EEO counselor. Petitioner shall 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 the decision is received.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (W0408)
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 (Z1008)
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
September 3, 2009
__________________
Date
2
0320090060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090060