05a41251_r
11-08-2004
Michele E. Harris, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michele E. Harris v. United States Postal Service
05A41251
November 8, 2004
.
Michele E. Harris,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A41251
Appeal No. 01A42891
Agency No. 1H-337-0025-03
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Michele
E. Harris v. United States Postal Service, EEOC Appeal No. 01A42891
(August 30, 2004). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In her request, complainant claims that her complaint involved a Notice
of Proposed Adverse Action - Reduction in Grade and/or Pay, Removal or
Furlough of Less than 30 Days, and not a Notice of Proposed Removal.
Complainant also claims that since she was subsequently demoted effective
November 29, 2003, the agency's final decision, dated August 9, 2004,
dismissing the complaint as a proposed action was improper.
After a careful review of the record, the Commission finds that in the
instant complaint, complainant alleged discrimination when she received
a Notice of Proposed Adverse Action - Reduction in Grade and/or Pay,
Removal or Furlough of Less than 30 Days, dated August 21, 2003.
The record indicates that complainant was actually demoted effective
November 29, 2003. Thus, the Commission finds that this subsequent
demotion merged with its proposed action. See Charles v. Department
of the Treasury, EEOC Request No. 05910190 (February 25, 1991).
Nevertheless, the record indicates that on December 3, 2003, complainant
thereafter filed an appeal to the Merit Systems Protection Board (MSPB)
concerning the same matter. On March 17, 2004, the MSPB issued its
decision affirming the agency's demotion action. The Commission has
held that the adjudication of the case by the MSPB is tantamount to an
election of remedies. See Spriesterbach v. United States Postal Service,
EEOC Appeal No. 01A00346 (April 6, 2000) (citing Aho v. Department of
Agriculture, EEOC Request No. 05860085 (May 22, 1985)). The Commission
also has held that upholding the unequivocal legislative interest to
provide only one forum in which to challenge the propriety of an agency
action alleged to have been based, in whole or in part, on discriminatory
factors, takes precedence over complainant's equitable entitlement to have
an adjudication of that issue in one forum or the other. See id. Thus,
the Commission finds that complainant has effectively made an election
to pursue the alleged demotion in an appeal to the MSPB. Therefore, the
Commission finds that its appeal decision properly affirmed the agency's
final decision to dismiss the complaint. See 29 C.F.R. � 1614.107(a)(4).
Based on the foregoing, the Commission finds that the request fails to
meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision
of the Commission to deny the request. The decision in EEOC Appeal
No. 01A42891 remains the Commission's final decision. There is no further
right of administrative appeal on the decision of the Commission on this
request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 8, 2004
__________________
Date