01A42420
06-10-2004
Reda Yousef, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Reda Yousef v. United States Postal Service
01A42420
June 10, 2004
Reda Yousef,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A42420
Agency No. 1J-482-0002-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 30, 2004, 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
on the bases of race (Arab), national origin (Arab), color (dark brown),
and reprisal for prior EEO activity<1> when complainant was issued an
emergency 14 day suspension following an altercation with a supervisor
and went more than 14 days without pay.
The agency dismissed all claims of discrimination pursuant to 29 C.F.R. �
1614.107(a)(4) because he raised the same matter in an appeal to the
Merit Systems Protection Board (MSPB). Dismissal is appropriate when
the claim is raised with the MSPB and either 29 C.F.R. � 1614.301 or 29
C.F.R. � 1614.302 show that the complainant has elected to pursue the
non-EEO process. Section 1614.302 applies to mixed case complaints.
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)).
In the present case, the MSPB assumed jurisdiction over complainant's
claim. During the processing of the MSPB appeal, complainant and the
agency reached a settlement agreement on the issue of his suspension.
Although the alleged discriminatory motive for the suspension was not
addressed by the MSPB, complainant's election of the non-EEO forum is
definitive. Both the MSPB claim and the discrimination claim brought
under Title VII arise from the same incident. As the suspension at issue
in the instant complaint concerns the same matter settled before the
MSPB, we find that complainant elected to pursue the same claim through
the MSPB process. Therefore, the Commission does not have jurisdiction
over this complaint.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's 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 10, 2004
__________________
Date
1The record indicates that complainant
participated in prior protected activity, but it is unclear under which
statute such activity occurred.