01A11378
03-15-2001
Jimmie D. McCreery, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jimmie D. McCreery v. U.S. Postal Service
01A11378
March 15, 2001
.
Jimmie D. McCreery,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11378
Agency No. 4-C-442-0188-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 4, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
The record reflects that complainant initiated EEO counseling on July
12, 2000, and filed a formal complaint on September 8, 2000. In his
complaint, complainant claimed that by Notice of Removal dated June 22,
2000, the agency terminated his employment (effective July 15, 2000) due
to discrimination based on his sex and in reprisal for filing prior EEO
complaints against the agency under Title VII and the Age Discrimination
in Employment Act of 1967. The record also shows that complainant filed
an appeal with the Merit System Protection Board (MSPB) on July 25,
2000, which also challenged his removal from employment.
The agency dismissed the complaint on the grounds that complainant had
raised the same issue in his MSPB appeal.
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. See 29 C.F.R. �1614.302(a)(1). An aggrieved
person may elect to 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. See 29 C.F.R. �1614.302(b). The employee
must be informed that he may not file both a complaint and an MSPB appeal,
and that whichever is filed first, shall be considered an election to
proceed in that forum. See Dillon v. U. S. Postal Service, EEOC Appeal
No. 01981358 (December 23, 1998) (citing Milewski v. U.S.Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
EEOC Regulation 29 C.F.R. �1614.107(a)(4)provides, in pertinent part,
that an agency shall dismiss a complaint or portion of a complaint where
the complainant has raised the same matter in an appeal to the MSPB.
Here, review of the EEO Counselor's report confirms that the EEO Counselor
informed complainant of the �mixed case� election procedures. However,
this same report also reflects that complainant had already filed an
MSPB appeal on July 18, 2000, regarding his termination.<1> Nonetheless,
because complainant had notice of the mixed case election procedures prior
to filing his EEO complaint, and did not withdraw his previously filed
MSPB appeal, we find that he elected to proceed in the MSPB forum.
Accordingly, we find that the agency properly dismissed the instant
complaint, and we AFFIRM that determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 15, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Review of the record shows that complainant dated his MSPB appeal as
�July 18, 2000,� but that the appeal was not filed with the MSPB until
July 25, 2000.