0120081329
03-12-2009
George A. Doolittle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George A. Doolittle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081329
Agency No. 1B121000108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 26, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (unspecified) and reprisal
for prior protected EEO activity under the Rehabilitation Act when:
1. On or about August 1, 2007,1 complainant was placed on Emergency
Placement and not allowed into the building.2
The agency dismissed the claim on the grounds that complainant first
elected to pursue the claim using the process administered by the Merit
Systems Protection Board. The agency further found that complainant's
EEO Counselor contact was untimely.
The Commission finds that the complaint was properly dismissed pursuant
to 29 C.F.R. � 1614. 107(a)(4). We note that an aggrieved person
may initially file a mixed case complaint with an agency or may file
a mixed case appeal directly with the Merit Systems Protection Board
(MSPB), pursuant to 5 C.F.R. � 1201.151, but not both. See 29 C.F.R. �
1614.302(b). EEOC Regulation 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.
The record establishes that on August 8, 2007, complainant filed a mixed
case appeal with the MSPB regarding his placement on off duty status,
effective July 31, 2007. On August 27, 2007, the MSPB issued a decision
dismissing the mixed case appeal based on complainant's withdrawal of
the appeal. Subsequently, on or about December 8, 2007, complainant
filed a Formal Complaint of discrimination on the same matter.
The Commission has held that once a complainant elects to proceed in
the MSPB forum, the withdrawal of his appeal does not negate his prior
election. See Hammond v. General Services Administration, EEOC Request
No. 05940428 (August 25, 1994). We therefore find that complainant
elected to proceed with the MSPB.
Accordingly, the agency's dismissal of complainant's complaint is AFFIRMED
for the reasons set forth herein.
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 12, 2009
__________________
Date
1 The FAD gives the date as August 11, 2007. However a review of the
record shows that the notice of Emergency Placement in Off Duty Status
is dated August 1, 2007, and the document states that the effective date
was July 31, 2007.
2 On appeal, complainant addresses additional allegations of
discrimination that occurred after the events described herein, including
his removal from the agency. Complainant is advised that if he wishes
to pursue an EEO complaint on these issues he should contact an EEO
counselor pursuant to 29 C.F.R. � 1614.106.
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0120081329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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