01a43334
11-29-2004
_________________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
_________________ v. United States Postal Service
01A43334
November 29, 2004
.
_________________,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43334
Agency No. 4J-481-0145-03
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
Complainant was employed as a Supervisor of Customer Service at
the agency's Southgate, Michigan Post Office. The agency demoted
complainant to Part-Time Flexible Letter Carrier, effective July 13,
2002. On July 17, 2002, complainant filed an appeal with the Merit
Systems Protection Board (MSPB). The MSPB appeal was dismissed without
prejudice. Complainant re-filed an appeal with the MSPB on November
12, 2002. On January 24, 2003, the MSPB issued an Initial Decision,
dismissing complainant's MSPB appeal as being settled. (MSPB Docket
No. CH-0752-02-0644-I-2).
On August 14, 2003, complainant contacted an EEO Counselor. Complainant
claimed that he was the victim of unlawful employment discrimination on
the bases of race, sex, and in reprisal for prior protected activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
On February 23, 2004, complainant filed the instant formal complaint.
Therein, complainant claimed that he was improperly demoted in 2002,
and that on July 7, 2003, he discovered that a similarly situated black
female employee had no such action taken against her.
On March 12, 2004, the agency issued a final decision, dismissing the
instant complaint on the grounds of untimely EEO contact.
The Commission determines that while the agency dismissed the instant
complaint on the grounds of untimely EEO Counselor contact, this case
is more properly analyzed in terms of whether complainant first pursued
the issue of his demotion with the MSPB, prior to filing the instant
complaint. The record discloses that complainant elected to file an appeal
with the MSPB on November 12, 2002, regarding the July 2002 demotion,
and the MSPB issued an Initial Decision dismissing his MSPB appeal as
being settled. (MSPB Docket No. CH-0752-02-0644-I-2). Complainant only
subsequently filed the instant complaint. The Commission determines
that the agency's dismissal of the instant complaint was proper. See 29
C.F.R. �1614.107(a)(4).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
November 29, 2004
__________________
Date