0520100030
11-30-2009
Ryan C. Spencer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ryan C. Spencer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 0520100030
Appeal No. 0120092309
Agency No. 1H303000509
DENIAL
Complainant timely requested reconsideration of the decision in Ryan
C. Spencer v. U.S. Postal Service, EEOC Appeal No. 0120092309 (September
3, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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 its prior decision, the Commission affirmed the agency's final decision
dismissing complainant's complaint on the grounds that complainant had
filed a Merit Systems Protection Board (MSPB) appeal. In his request,
complainant asserts that he was not properly informed of his election
rights with respect to pursuing his claim either in the EEO or MSPB
forum.
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, when an
aggrieved person pursues his claims in both forums, the adjudication of
the case on the merits by the MSPB is deemed tantamount to an election
of the remedies. In the instant matter, complainant is deemed to
have elected his remedies under the MSPB process by virtue of a full
adjudication on the merits in that forum.1
After reconsidering the previous decision and the entire record, 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. 0120092309 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z1008)
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
November 30, 2009
Date
1 The MSPB Administrative Judge issued a decision on March 3, 2009,
reducing the penalty to a 30-day suspension. Complainant's petition for
review by the full Board was granted on August 7, 2009. Therein, the
Board remanded the matter for a determination of whether by mitigating
the measure to a to a 30-day suspension, the MSPB Administrative Judge,
in effect, actually increased the penalty.
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0520100030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100030