Adam N.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Apr 18, 2019

2019001249 (E.E.O.C. Apr. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adam N.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 2019001249

Agency No. 4C080004718

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 16, 2018, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician
at the Agency’s Downtown Station facility in Trenton, New Jersey.

On March 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of disability and reprisal when on November 27, 2017, he was
not accommodated and was sent home and not permitted to return.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(4), asserting
Complainant already raised the same matter before the Merit Systems Protection Board (MSPB).
The Agency noted that the MSPB reversed the Agency decision to discontinue Complainant’s
limited duty assignment.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019001249

2
The instant appeal followed. In his appeal, Complainant states he “withdrew/opted not to pursue
a claim of disability discrimination” before the MSPB.

ANALYSIS AND FINDINGS

A mixed case complaint is a complaint of employment discrimination filed with a federal
agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. §
1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or
may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not
both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss
a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R.
§ 1614.302 indicates that a complainant has elected to pursue the non - EEO process.

Here, Complainant initially pursued a non-EEO process by filing an appeal with the MSPB.
Therefore, Complainant is precluded from subsequently pursuing this same matter in the EEO
forum. Thus, the Agency's dismissal for Complainant's election to file an appeal with the MSPB
in the same matter was proper.

We reject the argument raised by Complainant on appeal. Although Complainant argues that he
did not raise his discrimination/retaliation claims as part of his MSPB appeal, we determine that
he could have done so. See Kidd v. Dep't of the Navy, EEOC Appeal No. 0120121751 (June 28,
2012) (affirming the dismissal of complaint pursuant to 29 C.F.R.§ 1614.107(a)(4) where
Complainant failed to allege discrimination before the MSPB on the same matter).

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
2019001249

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Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 (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

April 18, 2019
Date