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.