0120090050
03-10-2009
Anthony Washington, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Washington,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090050
Agency No. 1G-781-0030-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 3, 2008, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of disability and in
reprisal for prior protected EEO activity when:
1. On July 27, 2007, complainant was harassed because he could not
perform duties that violated his physical restrictions.
2. On April 26, 2008, complainant was issued a Notice of Proposed Removal;
and subsequently, on May 20, 2008,1 a Letter of Decision was issued
removing complainant from the Postal Service effective May 31, 2008.
3. On July 25, 2008, complainant was notified that he was being denied
a reasonable accommodation.
The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1),
for stating the same claim that is pending before or has been decided
by the agency or the Commission. Additionally, the agency dismissed
claims 2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the
same matter before the Commission which complainant previously elected
to appeal to the Merit Systems Protection Board (MSPB).
Claim 1
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
The record indicates that complainant filed another complaint, Agency
No. 1G-781-0045-07, alleging, in pertinent part, that on July 27, 2007,
he was instructed to report to the manual flats which violated his medical
restrictions. The Commission finds that the instant complaint states
the same claim as raised by complainant in Agency No. 1G-781-0045-07.
Both complaints ultimately concern the violation of complainant's medical
restrictions. Therefore, we find that the instant complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim 2
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person
may elect to initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. �
1201.151, but not both. 29 C.F.R. � 1604.302(b). Moreover, whichever is
filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
The record reveals that complainant's removal was effective May 31,
2008. On June 30, 2008, complainant filed an appeal with the MSPB
on his removal. On July 30, 2008, complainant withdrew his appeal.
On July 31, 2008, the MSPB issued a decision dismissing his appeal
pursuant to complainant's withdrawal. Complainant filed a complaint of
discrimination with the agency on July 31, 2008. Complainant's complaint
raised the same issue as contained in his MSPB appeal. After carefully
reviewing the record on appeal, we find that complainant made an election
to appeal the agency's decision through the MSPB.
Claim 3
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We concur with the agency and find that complainant is not aggrieved as
a result of the incident alleged in claim 3. Nothing in the record
indicates that complainant suffered any harm or loss with respect to
a term, condition, or privilege of employment for which there is a
remedy. Complainant has failed to explain how this incident rendered
him aggrieved. Specifically, it is unclear how complainant can be denied
reasonable accommodation on July 25, 2008, when he was removed effective
May 31, 2008. Additionally, complainant stated in his complaint that,
on July 25, 2008, he was notified by first class mail that he was being
denied reasonable accommodation; however, a copy of that letter is not
in complainant's file. Assuming he did receive such a letter on July
25, 2008, the mere receipt of such a letter did not render complainant
aggrieved, because no work accommodation can be denied to a person no
longer employed by the agency. Moreover, complainant has not claimed
that he was denied a reasonable accommodation prior to his termination.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
March 10, 2009
__________________
Date
1 The date was erroneously noted as May 29, 2008; the correct date is
May 20, 2008.
??
??
??
??
2
0120090050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013