0120081527
05-20-2008
Willie F. Johnson, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Willie F. Johnson,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081527
Agency No. 9Z0J08002
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated December 28, 2007, 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. In his complaint, complainant alleged that he was subjected to
discrimination based on his race (black) and sex (male) when on October
29, 2007, he received a removal notice effective October 31, 2007.
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) requires the dismissal of
an EEO complaint where the complainant has filed an appeal with the
Merit Systems Protection Board (MSPB) and 29 C.F.R. � 1614.301 or .302
indicates that the complainant elected to pursue the non-EEO process.
The FAD dismissed the complaint on the grounds that complainant elected
to file an appeal with the MSPB on the same matter.
A review of the record shows that complainant filed an appeal his
removal to the MSPB prior to filing his EEO complaint on the same matter.
He filed his appeal with the MSPB on October 29, 2007, before initiating
EEO contact on October 30, 2007, and prior to filing his formal complaint
on December 3, 2007. Complainant was advised by the agency that he
had made an election, and must raise his claim of discrimination before
the MSPB. Complainant raised his discrimination claim with the MSPB, and
it adjudicated the claim on the merits (in an initial decision finding
no discrimination). 1 Given these circumstances, we find complainant
elected, under the above regulations, to file his appeal with the MSPB.
Accordingly, the agency's dismissal of complainant's complaint is affirmed
because he elected to appeal his removal to the MSPB. 29 C.F.R. �
1614.107(a)(4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 20, 2008
__________________
Date
1 Complainant also alleged the removal violated the Uniformed Services
Employment and Reemployment Rights Act (USERRA). The Commission does not
have jurisdiction to enforce USERRA. Complainant raised his USERRA claim
with the MSPB, and its initial decision found no violation of USERRA.
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0120081527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081527