01a00885
04-20-2000
Judy A. Burkhart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judy A. Burkhart, )
Complainant, )
)
v. ) Appeal No. 01A00885
) Agency No. 4-C-000-0003-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 11, 1999, complainant filed a timely appeal with this
Commission from an agency decision dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> In her April 29, 1999 complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(Caucasian), sex (female), age (DOB 11/28/52), and in reprisal for
prior EEO activity when, on December 2, 1998, she was issued a Letter of
Decision - Adverse Action - Removal, which reduced her in grade from an
Operations Support Specialist, Allegheny area, EAS-21, to an Operations
Support Specialist, Pittsburgh District, EAS-18. In its October 14, 1999
decision, the agency dismissed complainant's complaint because she filed
an appeal of the same matter with the Merit Systems Protection Board
(MSPB) prior to her EEO complaint, and because the appeal ultimately
resulted in an MSPB enforced settlement agreement between the parties.
An aggrieved person may initially file a mixed case complaint<2>
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).
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter cited as 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, under 29 C.F.R. � 1614.302, has
elected to pursue the non - EEO process. While complainant, through her
attorney, argues on appeal that the EEO Counselor never informed her of
the need to elect between the MSPB or the EEO forum, we find that such a
failure, in the present case, would at best be a harmless error. By the
time complainant contacted an EEO Counselor, she had already filed her
MSPB appeal over two months before, i.e., her election was already made.
The record discloses that complainant filed an appeal encompassing her
Letter of Decision and reduction in grade to the MSPB on December 22,
1998, and later signed an agreement settling that appeal on May 12, 1999.
As complainant's April 29, 1999 formal complaint raised the same matter as
that raised in her previous appeal to the MSPB, it is properly dismissed
under 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's final decision dismissing the subject complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2A 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).