_________________, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a43334 (E.E.O.C. Nov. 29, 2004)

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