0120083153
10-30-2008
Dwaine E. Larkin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dwaine E. Larkin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083153
Agency No. 4H335001808
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 10, 2008, 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. Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4). In a
complaint dated May 12, 2008, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when he was removed from
his position on November 30, 2005.
The record indicates that complainant appealed his to removal before
the Merit Systems Protection Board (MSPB No. AT0752-06-0237-I-1).
While, he initially alleged discrimination, he withdrew those claims at
the conclusion of the hearing. The MSPB decision upheld complainant's
removal. According to the counselor's report, the removal was effective
November 29, 2007. The record contains a copy of the MSPB decision dated
July 24, 2006.
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. In the instant case, complainant clearly raised his claims
with the MSPB and they have been adjudicated by the MSPB. As such, we need
not address the agency's other reasons for dismissing the complaint. The
agency's final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 30, 2008
__________________
Date
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0120083153
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083153