0120101343
06-30-2010
Grayson Agpawa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101343
Agency No. 1F957005909
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 12, 2010, 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) for raising the
same matter in an appeal to the Merit Systems Protection Board (MSPB).
BACKGROUND
In a complaint dated December 20, 2009, Complainant alleged that
the Agency subjected him to discrimination on the bases of race
(Asian/Filipino) and sex (male) when, on May 27, 2009, Complainant was
issued a notice of proposed removal, and subsequently on July 29, 2009,
he was issued a letter of decision upholding the removal.
The record indicates that Complainant filed an appeal with the MSPB
on July 22, 2009, challenging an alleged constructive suspension.
Upon receiving the decision letter, Complainant amended his MSPB appeal
on July 29, 2009, to reflect that he was appealing the removal letter. 1
On September 8, 2009, Complainant sought EEO counseling and thereafter
filed a formal complaint on December 20, 2009.
ANALYSIS AND FINDINGS
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. It is
clear in the instant case that Complainant filed an appeal with the MSPB
before he contacted the EEO counselor or filed a formal complaint. The
MSPB has adjudicated the matter.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 30, 2010
__________________
Date
1 The record contains a copy of an Initial decision of the MSPB, dated
February 10, 2010. In that decision, the MSPB Administrative Judge upheld
Complainant's removal for alleged sexual harassment. The decision does
not address any discrimination claims and did not give Complainant appeal
rights to the Commission.
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0120101343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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