0120113825
01-12-2012
Carolyn J. Thompson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Carolyn J. Thompson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113825
Agency No. 1E982002111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 22, 2011, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4) for first
raising the matter with the Merit Systems Protection Board (MSPB).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mailhandler at the Agency’s Seattle NDC facility in Federal Way,
Washington.
On March 23, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the basis of age (42)
when on January 26, 2011, she was informed that there was no work
available within her restrictions and she was sent home under the
National Reassessment Process.1
Complainant filed an appeal with the MSPB on January 31, 2011 Complainant
withdrew her appeal with the MSPB, and the matter was dismissed as noted
in a decision dated April 1, 2011.2 After she withdrew her MSPB appeal,
Complainant filed the instant complaint.
ANALYSIS AND FINDINGS
In the instant case, the record clearly shows that Complainant filed an
appeal with the MSPB before she filed her formal complaint. In accordance
with 29 C.F.R. § 1614.302(b), a person may file an appeal with the MSPB
or a formal complaint on the same matter, but not both. Complainant did
not wait for the MSPB to make a decision on the matter of jurisdiction.
As such, she is viewed as having made her election to pursue the MSPB
process prior to filing her EEO complaint. Regardless of whether she
raised age discrimination in her MSPB appeal, she could have done so if
she so chose. Merely because she did not raise a basis in her MSPB appeal
does not entitle her to also file an EEO complaint on the same issues.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 12, 2012
__________________
Date
1 Complainant also raised a claim of discrimination based on
disability. The Agency indicated that claim has been subsumed into the
McConnell class action lawsuit.
2 The MSPB decision indicates that Complainant returned to work on
February 12, 2011 without restrictions.
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0120113825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113825