01A23085_r
05-20-2003
Marion Butler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marion Butler v. United States Postal Service
01A23085
May 20, 2003
.
Marion Butler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23085
Agency No. 4B-010-1043-96
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, 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. , Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The record reflects that on July 12, 1996, complainant filed an appeal
with the Merits Systems Protection Board (MSPB), regarding his removal
from his agency position as a Custodian, effective June 21, 1996.
On July 12, 1996, complainant also filed a formal EEO complaint, alleging
that he was the victim of unlawful employment discrimination on the bases
of race, national origin, sex, color, disability, age, and in reprisal
for prior EEO activity when:
1) on May 6, 1996, he was denied leave in accordance with the Family &
Medical Leave Act; and
2) on May 14, 1996, he was issued a Notice of Proposed Removal for
unauthorized absence from the work place; and on June 13, 1996, he was
issued a Letter of Decision-Removal, terminating his employment effective
June 21, 1996.
On July 30, 1996, the agency issued the final decision that is the
subject of the instant appeal. Therein, the agency dismissed claim 2 on
the grounds that complainant raised the same matter in an appeal with
the MSPB. The agency did not provide appeal rights to the Commission,
finding that a dismissal of a mixed case complaint was not appealable
to the Commission. Regarding claim 1, the agency determined that this
claim was not a matter appealable to the MSPB, and indicated that it
was consolidated with Complaint No. 4B-010-1038-96, and accepted for
further processing.
The record contains a copy of the Order of an Administrative Judge (AJ)
of the MSPB, dated August 7, 1996. Therein, the AJ stated that the
issue of jurisdiction was raised because it appeared that complainant
filed a formal complaint with the agency before he filed his appeal
with the MSPB. The AJ further stated that the agency submitted a
copy of its July 30, 1996 final decision, discussed above and that
complainant's appeal is now ripe for adjudication. On August 9, 1996,
complainant withdrew his MSPB complaint. On August 14, 1996, the MSPB
issued an Initial Decision. First, the MSPB noted that complainant filed
an appeal regarding his removal from agency employment, and stated that
the MSPB has jurisdiction. The MSPB then dismissed complainant's appeal
based on his voluntary withdrawal.
By letter to the agency dated January 9, 1997, complainant requested
that his complaint be reinstated concerning his removal. In response to
complainant's letter, on February 19, 1997, the agency denied his request
for reinstatement because his complaint was closed when he withdrew his
MSPB appeal.
Complainant's counsel submitted a second request on April 29, 1997,
for reinstatement of the complaint. In a response dated May 27,
1997, the agency again denied complainant's request for reinstatement.
Complainant construed the agency's May 27, 1997 response as a matter
appealable to the Commission, and filed an appeal that was received by
the Commission on June 30, 1997. Thereafter, complainant, through his
counsel, submitted a document identified as �Memorandum in Support of
Complainant's Appeal to the Commission� dated July 22, 1997. Therein,
complainant's counsel argued that complainant, as a preference eligible
employee, was not required to make an election to file a mixed case
complaint with the agency or with the MSPB; and that the agency is
obligated to investigate and process complainant's complaint as a
non-mixed complaint.
On appeal, complainant through his attorney argues that he never elected
the MSPB process. Further, the attorney argues that as a "preference
eligible employee,� complainant is not required to make an election
between the EEOC and the grievance arbitration. Complainant's attorney
states that "[Complainant] decided to withdraw his mixed case with the
MSPB to use the grievance/arbitration procedure to contest his removal
and elected the EEO process to address his discrimination issues."
In response, the agency states that complainant filed a civil action in
the United States District Court for the District of Massachusetts (Case
No. 98cv30050-FHF) on July 16, 1998, alleging the same matters raised in
his complaint. The record reflects that the Court granted the agency's
motion for summary judgment, finding that complainant failed to exhaust
his administrative remedies. The agency requests that the Commission
dismiss complainant's appeal in accordance with 29 C.F.R. � 1614.409.
The agency further requests that if the Commission decides not to dismiss
complainant's complaint in accordance with 29 C.F.R. � 1614.409, it
requests that the Commission affirm its final order.
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. See 29 C.F.R. � 1614.302(b).
EEOC Regulation 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.
The record reflects that complainant's MSPB appeal and EEOC complaint
address complainant's June 21, 1996 removal. Although complainant filed
an MSPB appeal and EEO complaint on July 12, 1996, and later withdrew
his MSPB appeal on August 9, 1996, after receiving the July 30, 1996
final agency decision, we have held that once a complainant elects to
proceed in the MSPB forum, the withdrawal of his appeal does not negate
his prior election. See Hammond v. General Services Administration,
EEOC Request No. 05940428 (August 25, 1994); Cox v. United States Postal
Service, EEOC Request No. 01943638 (March 31, 1995). Consequently, we
find that complainant elected to proceed with the MSPB. Accordingly,
the agency's dismissal of complainant's complaint is 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
May 20, 2003
__________________
Date