0120103099
11-18-2010
John Gibson, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
John Gibson, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120103099
Agency No. 4K210004310
DECISION
On July 2, 2010, Complainant filed a timely appeal with this Commission from the Agency's decision dated June 3, 2010, 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.
BACKGROUND
On January 20, 2010, the Agency placed Complainant in emergency off-duty status without pay charging him with violating the zero tolerance policy by intentionally bumping into a supervisor and calling him a bitch. He was then given a notice of proposed removal dated February 17, 2010, charging him with improper conduct and citing the above incident as a supporting specification. Two other supporting specifications were failure to follow the acting supervisor's instructions to go to the supervisor's office, which occurred in tandem with Complainant intentionally bumping the supervisor and calling him a bitch; and Complainant on January 15, 2010, approaching the station manager while repeatedly yelling, or asking in an elevated tone, whether he was being discriminated against, invading his personal space by coming within inches of him in an intimidating manner.1 The Agency sustained the proposed removal and removed Complainant effective March 27, 2010.
Complainant filed an EEO complaint on May 12, 2010, alleging that he was discriminated against in reprisal for prior EEO activity when he was placed in off-duty status, and was issued the proposed and decision to remove him.
The Agency dismissed the complaint under 29 C.F.R. � 1614.107(a)(4). It reasoned that Complainant filed an appeal with the MSPB on March 27, 2010, concerning the actions in his subsequent complaint.2
In its July 23, 2010, initial decision, the MSPB indicated that the matter appealed was the termination. It sustained the charge of improper conduct and all the specifications, and upheld the removal.3
On appeal, Complainant makes no argument.
ANALYSIS AND FINDINGS
Upon review we find the Agency properly dismissed Complainant's complaint for raising the matter in an appeal to the MSPB. 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 the complainant has elected to pursue the non - EEO process. In the present case, the record shows that Complainant raised his March 27, 2010 removal with the MSPB in March 2010, prior to filing his formal EEO complaint in May 2010. Hence, we find that Complainant elected the MSPB process and can not now choose the EEO process for the same matter. See Nunally, Sr. v. United States Postal Service (Capital Metro Area), EEOC Appeal No. 0120083912 (April 23, 2010), request to reconsider denied, EEOC Request No. 0520100381 (July 30, 2010). Accordingly, we AFFIRM the final agency decision dismissing Complainant's complaint.
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
November 18, 2010
__________________
Date
1 Initial Merit Systems Protection Board (MSPB) decision number PH-0752-0315-I-1 (July 23, 2010), indicates that the Agency explained Petitioner was instructed to go to the supervisor's office on January 20, 2010, for a pre-disciplinary meeting about the January 15, 2010, incident.
2 The record contains a copy of Petitioner's electronic appeal to the MSPB with a marked submission date of Saturday, March 27, 2010. The MSPB's initial decision indicates the appeal was filed on March 29, 2010.
3 As of November 17, 2010, Petitioner's petition to the Board for review of the initial decision was pending.
??
??
??
??
2
0120103099
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103099