0120121202
05-24-2012
Marc A. Madelinckas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Marc A. Madelinckas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121202
Agency No. 4E-890-0010-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 15, 2011, dismissing a formal 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (4) for filing an appeal with the Merit Systems Protection Board (MSPB) prior to filing the instant formal EEO complaint.
BACKGROUND
During the period at issue, Complainant worked as a Custodial/ Laborer at the Agency's Crossroads Post Office facility in Las Vegas, Nevada. On November 28, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination on the bases of disability and in reprisal for prior protected activity when:
he was removed from Agency employment on October 29, 2011.
On December 15, 2011, the Agency issued a final decision. The Agency dismissed the formal complaint on the grounds that Complainant had elected to file an appeal with the MSPB on November 8, 2011, before filing the instant formal complaint on November 28, 2011.1
The record in this case contains a copy of a petition for appeal, filed by Complainant with the MSPB, which is date-stamped as received by the MSPB on November 7, 2011. Therein, Complainant stated that the Agency personnel determination he was appealing was "Removal, but still on the rolls of the U.S. Postal Service." Complainant stated that the effective date of the personnel actions was "10-29-2011."
The record also contains an Acknowledgement Order by the MSPB, dated November 8, 2011 (MSPB Docket No. SF-0752-12-0084-I-1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. Section 1614. 107 (a) (4) provides that an agency shall dismiss a complaint where a complainant has raised allegations of discrimination in an appeal to the Merit Systems Protection Board prior to the filing of his EEO complaint. The Commission finds that Complainant filed an appeal before the MSPB regarding his removal on November 3, 2011, prior to the filing of the formal EEO complaint on November 20, 2011.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
May 24, 2012
__________________
Date
1 The record in this case also contains an Agency document for a matter identified as Agency Case No. 4E-890-0014-11, dated November 22, 2011. Therein, the Agency dismissed a claim, but accepted for investigation twelve other claims. This matter is not presently before us on appeal and will not be addressed further herein.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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