0320180015
02-21-2018
Toshia F.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Toshia F.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Petition No. 0320180015
MSPB No. HHS0S00652017
DECISION
On November 22, 2017, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, we find that Petitioner's petition is untimely and therefore is DISMISSED.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Postmaster, EAS-20, at the Agency's Gloucester Virginia Postal facility in Richmond, Virginia. Petitioner alleged that the Agency discriminated against her based on reprisal for prior protected EEO activity when she was demoted from Postmaster, EAS-20, to Supervisor of Customer Services, EAS-17, as a result of a finding of unsatisfactory performance.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency had sufficiently supported its decision to downgrade Petitioner because the record clearly showed that Petitioner's performance was poor. The AJ also found that Petitioner did not support her affirmative defense that she was subjected to reprisal. Petitioner did not seek review by the full Board, so the initial decision became the final decision on August 10, 2017. Petitioner then filed the instant petition on November 22, 2017.
On appeal, Petitioner alleges that the Agency did not consider her January 10, 2001, Settlement Agreement, which required the Agency to provide her with a Performance Achievement Plan prior to taking any action against her. Petitioner maintained that she "just located the settlement agreement in her numerous files of EEOC complaints throughout the past 16 years." Petitioner contends that the settlement agreement has not expired.
Petitioner maintains that, four days after the decision became final on August 14, 2017, she filed a formal complaint of discrimination with the Agency. Initially, the Agency notified her that it had accepted the claim on August 29, 2017. However, after the Agency began to investigate the complaint and received a copy of the MSPB decision, the Agency notified the Petitioner on November 9, 2017, that the claim regarding unlawful discrimination for the notice of proposed removal and subsequent downgrade was dismissed in accordance with 29 C.F.R. 1614.107(a)(1), for failure to state a claim due to lodging a collateral attack on the proceedings of another forum, because Petitioner had voluntarily elected to pursue her complaint with the MSPB.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over mixed-case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record, it is the decision of the Commission to dismiss Petitioner's appeal as untimely. The Board's decision became final on August 10, 2017. Therefore, her appeal to the Commission was due no later than Monday, September11, 2017.2 She did not file her appeal until November 22, 2017, which was more than two months after her appeal was due. We find that the MSPB's decision clearly notified Petitioner that she had 30 days to appeal her case to the Commission. Instead, Petitioner filed a complaint with the Agency and included, among her seven claims, the demotion claim that had been included in her MSPB decision. The Agency properly dismissed this claim from Petitioner's EEO complaint, finding that her appeal to the MSPB was an irrevocable choice of forum. See 29 C.F.R. �1614.107(a)(4); Rodriguez v. US. Postal Service, EEOC Appeal No. 0120080575 (Feb. 7, 2008) and Fuller v. U.S. Postal Service, EEOC Appeal No. 0120065001 (Oct. 19,2007), citing Hammond v. General Services Admin., EEOC Request No. 05940428 (Aug. 25, 1994). In addition to her untimely appeal with the Commission, we agree that Petitioner is attempting to collaterally attack the Agency's dismissal which is not permitted.3 Accordingly, the Petitioner's appeal is DISMISSED.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/21/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The thirtieth day after the Board's decision became final was a Saturday. Accordingly, the deadline was extended to the next business day. See 29 C.F.R. � 1614.604(d).
3 The appropriate forum for Petitioner to challenge the partial dismissal of her EEO complaint is to raise the matter before the EEOC Administrative Judge if she has requested a hearing or, if she has not requested a hearing on that complaint, to raise the matter on appeal to the Commission once she has received a final agency decision. See 29 C.F.R. � 1614.107(b).
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