0120112650
10-20-2011
Helen J. Hamp, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Helen J. Hamp,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112650
Agency No. 4H-330-0100-11
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated April 11, 2011, dismissing her complaint of
unlawful employment discrimination in violation of 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 City Carrier at the Agency’s Post Office in Opa Locka, Florida.
On March 18, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of disability
(wrist/elbow) and reprisal for prior protected EEO activity under
Section 501 of the Rehabilitation Act of 1973 when, on December 29,
2010, Complainant was placed off duty in an involuntary Leave without Pay
(LWOP) status under the National Reassessment Process.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(4)
for raising the same matter before the Merit Systems Protect Board (MSPB).
The Agency indicated that Complainant filed the mixed case appeal on March
17, 2011, the day before her formal EEO complaint. Therefore, the Agency
determined that Complainant elected to pursue the matter with the MSPB.
Complainant appealed. On appeal, Complainant’s Representative
(Representative) indicated that the Agency’s EEO Specialist informed
Complainant’s representative that Complainant can file both a formal EEO
complaint and an MSPB appeal and that the MPSB appeal must be filed first.
The Agency requested that the Commission affirm its dismissal action.
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.
Upon review of the record, we find that Complainant clearly filed her
appeal with the MSPB on March 17, 2011, and her formal complaint on March
18, 2011. Therefore, the complaint file has shown that Complainant has
elected to pursue the non-EEO process, namely MSPB.1 As such, we find
that the matter was properly dismissed by the Agency.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s final
decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(4).
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
October 20, 2011
__________________
Date
1 The Commission reminds Complainant that we have held that once a
complainant elects to proceed in the MSPB forum, the withdrawal of
his or her appeal does not negate the prior election. See Hammond
v. Gen. Serv. Admin, EEOC Request No. 05940428 (August 25, 1994).
We note, however, if the MSPB denies jurisdiction in this matter, the
Commission would not view the matter as a “mixed case” as defined
by 29 C.F.R. § 1614.302(a). Thus, the case would be considered
a “non-mixed” matter and processed accordingly. See generally
Schmitt v. Dep’t of Transp., EEOC Appeal No. 01902126 (July 9, 1990).
Then, Complainant’s claim of disability-based discrimination would
be subsumed under the McConnell class action. McConnell v. U.S. Postal
Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010).
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0120112650
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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