0120082941
09-14-2009
Eric W. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eric W. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082941
Agency No. 4G-770-0287-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 28, 2007, 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.
Complainant served as the Postmaster at Port Neches, TX, until he was
terminated on the grounds that he discarded mail. In his complaint
dated August 13, 2007, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), sex (male), and color
(unstated) when he was removed effective March 24, 2006. The record
reflects that complainant filed his complaint after a newspaper article
discussing the destruction of a post office and its mail during 2005's
Hurricane Rita came to his attention in 2007.1
The record reflects that, following his removal, complainant filed an
appeal with the Merit Systems Protection Board (MSPB). Subsequently, the
parties entered into a settlement agreement (SA) on June 9, 2006 which
provided, in relevant part, that complainant agreed to a "permanent
and unconditional release and waiver" regarding his removal, and he
was allowed to resign. The agency subsequently dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), as having been raised
in an appeal to the MSPB.
On appeal, complainant submitted a number of documents pertaining to
both his EEO complaint and his MSPB appeal, but did not submit brief of
narrative statement in support of his appeal. The agency did not submit
a reply.
We note that this case presents a "mixed case" complaint. 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.
Here, complainant pursued and settled his claim before the MSPB prior to
filing his formal EEO complaint.2 Accordingly, we find that the agency
properly dismissed the instant complaint. Id.
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
September 14, 2009
Date
1 The relevance of this situation to complainant's removal is not readily
apparent.
2 In view of this circumstance, we need not reach the issue of whether
complainant's EEO Counselor contact was timely.
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0120082941
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013