Steve Brannon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 4, 2001
01997118 (E.E.O.C. Jan. 4, 2001)

01997118

01-04-2001

Steve Brannon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Steve Brannon v. United States Postal Service

01997118

01-04-01

.

Steve Brannon,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01997118

Agency No. 4G752037099

DECISION

Complainant timely filed an appeal with this Commission from the

final agency decision, concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. Upon review, the Commission finds

that the agency, in its August 20, 1999 final decision, properly dismissed

complainant's formal EEO complaint for untimely EEO Counselor contact.

See 29 C.F.R. � 1614.105(a).<1>

ISSUE PRESENTED

The issue presented herein is whether complainant's formal EEO complaint

should be dismissed because he elected to file with the Merit Systems

Protection Board (MSPB).

BACKGROUND

Complainant filed a formal complaint on June 21, 1999, alleging that he

was discriminated against

on the basis of his race (Black) when he was removed from his

postal employment for making inappropriate and unacceptable

statements to a supervisor and submitting false answers to

questions on his application for employment. On August 5, 1997,

complainant was placed in non-duty status without pay. At that time,

complainant contacted the EEO office, however, a formal complaint was

not filed by the complainant.

After receiving a reissued Notice of Proposed Removal on September 26,

1997, complainant was removed from the Postal Service on October 14,

1997. Complainant elected to pursue his case through the MSPB, where

he raised the sole issue of the agency's removal action. In its final

decision, the agency dismissed complainant's complaint for failure to

contact an EEO Counselor in a timely fashion. The agency reasoned that

Counselor contact was not made within forty-five (45) days of the alleged

discriminatory incidents of October 14, 1997, and that complainant failed

to provide a credible explanation to justify extending the time limits.

Moreover, complainant failed to raise an issue of discrimination as an

affirmative defense during his appeal to the MSPB.

ANALYSIS AND FINDINGS

According to EEOC Regulations, an aggrieved person may initially file

a mixed case complaint with an agency or a mixed case appeal with the

MSPB, but not both. See 29 C.F.R. �1614.302(b). EEOC Regulation 29

C.F.R. �1614.302(b) further provides that an agency shall inform every

employee who is the subject of an action that is appealable to the MSPB

and who has either orally or in writing raised the issue of discrimination

during the processing of the action of the obligation to make an election

between the forums, and that an election is made by filing a mixed case

appeal with the MSPB or a formal mixed case complaint with the agency,

whichever is filed first.

Complainant maintains that he, or his Union representative, returned to

the EEO office to discuss complainant's removal after his termination

took effect. <2> According to the complainant, he was �made to give

up [his] EEO complaint by signing some paper work before pursuing the

MSPB procedure.� Complainant, in so stating, is acknowledging that he

elected to pursue his case through the MSPB, rather than the EEO process.

The complainant further asserts that he was unaware of his right to a

mixed case appeal with the MSPB. The Commission is unpersuaded, however,

because as a matter of course, MSPB appeal forms provide an appellant

the opportunity to state whether they believe they were discriminated

against by the agency in connection with the

matter appealed. As such, the Commission finds that pursuant to 29

C.F.R. �1614.302(b), the complainant elected to file an appeal with the

MSPB regarding his termination rather than file an EEO complaint on the

matter.

Complainant admits that he elected to pursue his claim through the

MSPB, where the complainant raised the sole issue of the agency's

removal action. By not asserting discrimination during his MSPB

process, complainant chose to forego his right to appeal his claim to

the Commission. For the reasons set forth above, the agency properly

dismissed complainant's claim.

CONCLUSION

Accordingly, the Commission holds that the agency's decision to dismiss

complainant's formal EEO complaint was proper, and is therefore,

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

__01-04-01________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The only evidence of this visit is the Statement Concerning EEO Complaint

which was Exhibit 3a to the MSPB record. The undated Statement reads:

The Appellant has filed an EEO complaint of discrimination on the Notice

of Removal.