01A30956
04-24-2003
Jackie W. Hudson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jackie W. Hudson v. United States Postal Service
01A30956
April 24, 2003
.
Jackie W. Hudson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30956
Agency No. 1G-711-0005-00
Hearing No. 270-A2-9147X
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. In his complaint,
complainant claimed that he was subjected to discrimination on the bases
of race (African American), color (Black), sex (male), disability (chronic
renal kidney failure) and in reprisal for prior EEO activity when:
on June 14 1999, he was issued a notice of proposed removal; and
he was issued a second notice of proposed removal on October 18, 1999.
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). In a decision dated September 10, 2002, the AJ issued a decision
without a hearing, dismissing issue 1 on the grounds that complainant
previously raised his claim with the Merit Systems Protection Board
(MSPB). Although the MSPB dismissed his complaint due to complainant's
withdrawal of the complaint, the AJ found that he had elected a forum,
and could not obtain relief through the EEO process. Regarding issue 2,
the AJ found that the agency's proposed removal did not constitute a final
action since there was no evidence that it had ever been implemented,
and no dispute that it had been rescinded. The agency adopted the
AJ's decision. From this decision, complainant appeals.
Complainant presents no argument on appeal, and the agency requests we
affirm the FAD.
The agency may dismiss claims alleging the same matters complainant
already has elected to pursue through an MSPB appeal. 29 C.F.R. �
1614.107(a)(4). Complainant filed an appeal with the MSPB regarding issue
1 prior to filing his formal complaint in the EEO process. Therefore,
he elected to pursue his claim via the MSPB, not the EEO process.
29 C.F.R. � 1614.302(b). The MSPB's dismissal does not abrogate
complainant's election.
Regarding issue 2, the Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The record shows that on
November 4, 1999, the agency rescinded the October 18, 1999, letter
of proposed removal. Complainant has not disputed that the letter of
proposed removal was rescinded.
We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We therefore discern no basis to disturb the AJ's decision. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. Accordingly, the agency's dismissal is AFFIRMED.
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
April 24, 2003
__________________
Date