0120080117
12-07-2007
Gailene Pope, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gailene Pope,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080117
Agency No. 1-H-301-0040-07
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dismissing her formal 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On January 13, 2006, complainant filed an appeal with the Merit Systems
Protection Board (MSPB) concerning her demotion (effective November 20,
2005) from the position of Supervisor Customer Service, Level 17, to a
PTF Distribution Clerk, Level 5. In a decision dated April 21, 2006,
the MSPB dismissed complainant's appeal on the grounds that it was
untimely filed.
On April 25, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
On August 7, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of race, color, and in reprisal
for prior protected EEO activity when on April 25, 2007, she became
aware that she was denied her right to file an EEO complaint when she
was demoted from the position of Supervisor Customer Service to a PTF
Distribution Clerk.
In a final decision dated August 30, 2007, the agency dismissed the
formal complaint on the grounds that complainant had raised the same
matter before the MSPB.
EEOC Regulation 29 C.F.R. � 1614. 107(a)(4) provides that the agency
shall dismiss a complaint where complainant has raised the same matter
in an appeal to the MSPB.
The matter raised in the instant EEO complaint and in the above
referenced MSPB appeal is the same: complainant's demotion from the
position of Supervisor Customer Service to a PTF Distribution Clerk.
On appeal, complainant essentially reiterates the arguments she made
before the agency. Complainant asserts that she was unaware of the
right to a mixed case appeal with the MSPB.
The Commission is unpersuaded, however. As a matter of course, MSPB
appeal forms provide the complainant the opportunity to state whether
they believe they were discriminated against by the agency in connection
with the matter appealed. The Commission notes that the MSPB form filed
by complaint stated in part that "you may raise certain other claims in
connection with an appeal of an agency personnel action or decision...MSPB
Form 185-4B-for claims that the agency action or decision was the result
of prohibited discrimination (race, color religion, sex national origin,
disability, age)." The Commission further notes that in its October
12, 2005, Letter of Decision-Reduction in Grade/Pay and Reassignment,
the agency specifically stated that "If you believe that the action
is based, in whole or part, on discrimination you have the option of
filing an appeal with the MSPB or filing an EEO complaint with the Postal
Service, but not both. Before filing an EEO complaint, you must bring
the matter to the attention of the EEO Counselor...within 45 calendars
days of the effective date of this decision." As such, the Commission
finds that pursuant to 29 C.F.R. �1614.302(b), the complainant elected
to file an appeal with the MSPB regarding her demotion rather than file
an EEO complaint on the matter.
The final agency decision dismissing the complaint was proper and is
AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
December 7, 2007
__________________
Date
1 Because of our disposition of this case, we determine that is
unnecessary to address the agency's dismissal of the instant complaint
on alternative grounds.
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2
0120080117
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080117