Deidre Marie Lester, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 12, 2002
01A23420_r (E.E.O.C. Sep. 12, 2002)

01A23420_r

09-12-2002

Deidre Marie Lester, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Deidre Marie Lester v. United States Postal Service

01A23420

September 12, 2002

.

Deidre Marie Lester,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A23420

Agency No. 4J-460-0014-02

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 8, 2002, dismissing her 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. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of race (Caucasian) and sex (female) when:

Complainant was removed from her position for misuse of government funds.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),

after determining that complainant had elected to pursue her claim through

the Merit Systems Protection Board (MSPB) by filing an appeal with the

Board dated December 14, 2001. On appeal, complainant contends that

she was informed the MSPB did not have jurisdiction over her claim.

Complainant therefore withdrew her MSPB appeal during the hearing of

her appeal before the MSPB Administrative Judge on April 19, 2002.

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 elect to 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). Moreover, whichever

is filed first shall be considered an election to proceed in that forum.

See Dillon v. United States Postal Service, EEOC Appeal No. 01981358

(December 23, 1998)(citing Milewski v. United States Postal Service,

EEOC Request No. 05920429 (June 11, 1992)).

In the Initial Decision, dated April 22, 2002, the MSPB found that,

"The Board has jurisdiction over this appeal." The MSPB dismissed

the appeal because complainant withdrew her appeal before the Board.

Accordingly, we find that complainant elected to pursue her claim through

the MSPB appeals process prior to the time she filed her EEO complaint on

January 4, 2002. The agency properly dismissed complainant's complaint

pursuant to 29 C.F.R. � 1614.107(a)(4).

We therefore AFFIRM the agency's dismissal of the complaint.

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

September 12, 2002

__________________

Date