Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120113880 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120113880

Agency No. 1J-608-0002-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated July
6, 2011, concerning 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 the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Distribution Operations at the Agency’s Park Road Processing & Distribution Center in
Chicago, Illinois. On February 28, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of sex (male) and age (45) when he
received a Letter of Decision - Reduction in Grade and Pay. He was demoted to the position
of part-time flexible City Carrier.

The Agency identified the complaint as a mixed case complaint, investigated and issued a final
decision pursuant to 29 C.F.R. § 1614.302(d). The final decision properly notified
Complainant of his right to appeal to the Merit Systems Protection Board (MSPB), not the
Equal Employment Opportunity Commission. Despite this notification, Complainant filed this
appeal with the Commission.

EEOC Regulation 29 C.F.R. § 1614.302 permits an employee complaining of an action that is
appealable to the MSPB to file a mixed case complaint with the agency or filed a mixed case
appeal with the MSPB pursuant to 5 C.F.R. § 1201.151, but not both. In the instant matter,
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the Agency determined that Complainant's formal complaint was a mixed case complaint, over
which the MSPB has jurisdiction, and issued a final decision finding no discrimination. The
final decision gave Complainant mixed case rights and properly instructed him to file an appeal
with the MSPB, and not with the Commission. Under the Commission's regulations,
Complainant improperly filed his appeal from the Agency's final decision on a mixed case
complaint with the Commission, and it is DISMISSED.1

Complainant is further advised that after the MSPB issues a decision on his appeal (if he
chooses to file one), he would, at that point, have the right to petition the Commission for
review of the MSPB's decision on his claims of discrimination.

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

1 If the MSPB dismisses any appeal filed by Complainant for jurisdictional reasons, the
complaint would become a non-mixed case. If such a determination by the MSPB were to
occur, EEOC Regulation 29 C.F.R. § 1614.302(b) provides that the agency shall issue a notice
under § 1614.108(f) giving Complainant the right to elect between a hearing before an EEOC
Administrative Judge or an immediate final decision.

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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

June 14, 2013
Date