01A41776_r
06-16-2004
Israel A. Molina, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Israel A. Molina v. United States Postal Service
01A41776
June 16, 2004
.
Israel A. Molina,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41776
Agency No. 1G-781-0033-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 15, 2003, 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.
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 sex and age when:
On December 26, 2002, S1 yelled at complainant on the work room floor;
On December 30, 2002, S1 ordered complainant to report to the Plant to
sign and post the overtime list;
On January 16, 2003, S1 placed complainant on administrative leave;
issued complainant a proposed reduction in grade for failure to properly
perform the duties of his position and subsequently downgraded complainant
from level 19 to level 17, effective April 19, 2003.
The agency dismissed claims (1) and (2), pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. The agency found that
complainant initiated the EEO process on February 19, 2003. The agency
found that the events described in claims (1) and (2) occurred beyond
the 45 day time limit and are therefore untimely.
The agency dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(4),
after determining that complainant had previously raised the same claim
in an appeal filed with the Merit Systems Protection Board (MSPB).
On appeal, complainant does not challenge the framing of the claims of
his complaint.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999).
We find the agency properly dismissed claims (1) and (2) for untimely
EEO Counselor contact. These incidents occurred more than 45 days prior
to complainant's February 19, 2003 initial EEO contact.
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)).
The record shows that complainant filed an appeal with the MSPB on May
5, 2003, regarding his reduction from level 19, Manager, Distribution
Operations to level 17, Supervisor Distribution Operations, effective
April 19, 2003. Further, the record shows the MSPB issued an Initial
Decision (Molina v. United States Postal Service, Docket Number
DA-0752-03-0388-I-1, (August 15, 2003)), which sustained the agency's
action. Accordingly, we find complainant's mixed case complaint, dated
June 23, 2003, was filed after complainant had elected to pursue his
remedies regarding his grade reduction before the MSPB before he filed
the instant complaint. Claim (3) is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(4)<1>.
Accordingly, we AFFIRM the agency's dismissal of the complaint.
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
June 16, 2004
__________________
Date
1The agency's final decision improperly failed
to notify complainant of his right to appeal the dismissal of claim (3)
to the Commission. However, we consider herein complainant's appeal
statement as an appeal from the agency's dismissal of claim (3).