0120091826
08-20-2009
Carla I. La Greca, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carla I. La Greca,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091826
Agency No. 1A-126-0003-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 11, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of sex (female), disability (wrists, brain tumor, and perceived mental),
age (DOB: January 5, 1952), and reprisal for prior protected EEO activity
when: since September 2008, she has been harassed culminating in the
agency issuing a letter of decision - no work available on November 2,
2008.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
for raising the same matter with in an appeal with the Merit System
Protection Board (MSPB). Complainant filed an appeal asserting that she
should be permitted to pursue both her complaint within the EEO process
as well as with the MSPB.
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
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. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides
that an agency shall dismiss a complaint where the complainant has raised
the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates
that the complainant has elected to pursue the non - EEO process.
Upon review of the record, complainant has indicated that she filed
an appeal with the MPSB on the same matter before pursuing the matter
with the EEO Office. As such, we find that complainant has elected to
pursue the non-EEO process. Therefore, the Commission finds that the
agency's dismissal was appropriate. The Commission reminds complainant
that if she alleges her claim of discrimination within her MSPB appeal,
once the MSPB has issued its decision, she may file a petition for review
with the EEOC.1
Therefore, the Commission affirms the agency's final decision dismissing
the complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
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
August 20, 2009
__________________
Date
1 EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission will review the MSPB decision to determine whether
the decision with respect to the allegation of discrimination constitutes
a correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
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0120091826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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