Jackie W. Hudson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2003
01A30956 (E.E.O.C. Apr. 24, 2003)

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and no dispute that it had been rescinded.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