01a51431
03-04-2005
Merl R. Richards v. United States Postal Service
01A51431
03-04-05
.
Merl R. Richards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51431
Agency No. 4E-640-0099-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 4, 2004, 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. , Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of religion (New Pentecostal), disability, age (D.O.B. 11/16/48),
and reprisal for prior EEO activity when on August 16, 2004, he was
escorted out of the Martin City Station Post Office and placed in a
non-pay status for having an open bible at his case. Additionally,
he maintained that he was not allowed union representation.<1>
The agency dismissed the complaint on the grounds that complainant
elected to file an appeal to the Merit Systems Protection Board (MSPB)
on September 3, 2004, on the same matter prior to the filing of his EEO
complaint on September 13, 2004.
On appeal, complainant does not contend that he did not file an MSPB
appeal prior to filing an EEO complaint.
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 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. 29 C.F.R. � 1614.302(b). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)). Further, EEO Regulation 29
C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint
where 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.
In the instant case, it appears that complainant's MSPB appeal and the
EEOC complaint both address the claim that complainant was placed in a
non-pay status on August 16, 2004. Accordingly, the Commission finds that
the agency's decision to dismiss the complaint pursuant to 29 C.F.R. �
1614.107 (a)(4) was proper. The Commission also finds that complainant's
claim that he was not allowed union representation was properly dismissed
for failure to state a claim. See Patrick Aleman v. Department of the
Navy, EEOC Appeal No. 01955250 (January 30, 1996).
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
____03-04-05______________
Date
1 We note that in filing his appeal,
complainant also raised an allegation of noncompliance with a final
decision issued in another employee's case. Complainant appears to be
alleging that he was subjected to harassment and retaliation for being a
witness in that employee's EEO case. This allegation is being addressed
in EEOC Appeal No. 01A51372 and will not be addressed as part of the
appeal in this case.