01A32810_r
08-07-2003
Judith E. Corbett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith E. Corbett v. United States Postal Service
01A32810
August 7, 2003
.
Judith E. Corbett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32810
Agency No. 4F-945-0063-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 14, 2003, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reveals that complainant, a Supervisor (Customer Services) at
the agency's Alamo Post Office, filed a formal EEO complaint on March 3,
2003, claiming that the agency discriminated against her on the bases
of race, sex, age and retaliation (opposition to racial harassment
of associate) when effective December 23, 2002, she was removed from
the agency.
On March 14, 2003, the agency issued a decision dismissing complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the same
matter before the Commission which complainant previously elected to
appeal to the Merit Systems Protection Board (MSPB).
The record shows that complainant filed a mixed case appeal with the MSPB
on January 8, 2003, regarding a letter of Decision-Removal that she was
issued on December 17, 2003, for unacceptable conduct and interference
with investigation; and that she would be removed from her employment
effective December 23, 2002. In her MSPB appeal, complainant raised
claims of discrimination on the bases of race, sex (sexual harassment)
and retaliation. Subsequently, on March 3, 2003, complainant filed the
instant EEO complaint claiming discrimination on the bases
of race, sex (sexual harassment), age and retaliation (opposition to
racial harassment of associate) when effective December 23, 2002, she
was removed from the agency.
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. � 1604.302(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)).
After carefully reviewing the record on appeal, we find that
complainant made an election to appeal the agency's decision through
the MSPB. Accordingly, the agency's decision to dismiss complainant's
complaint was proper and is hereby AFFIRMED for the reasons set forth
herein.
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
August 7, 2003
__________________
Date