0120082789
11-13-2008
Raymond Moctezuma, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raymond Moctezuma, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082789
Agency No. 1H-343-0008-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 15, 2008, 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.
In his complaint filed on May 2, 2008, complainant alleged that he was
subjected to discrimination on the bases of race (Caucasian), national
origin (Hispanic), sex (male), color (white), and reprisal for prior
protected EEO activity when, on February 20, 2008, complainant received a
"Letter of Decision - Removal."
The agency dismissed the complainant's complaint pursuant to the
regulation set forth at 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 System Protection Board (MSPB).
Upon review, we find that complainant's complaint involves the agency's
removal action. Therefore, it is solely one claim of discrimination.
Further, we find that complainant raised this matter with the MSPB first.
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). The Commission's regulations
provide that whichever is filed first - a mixed-case complaint with
the agency or a mixed case-appeal with the MSPB - will be considered an
election to proceed in that forum. The Commission's regulations further
provide that an agency shall dismiss a complaint where the complainant
has raised the matter in an appeal to the MSPB. 29 C.F.R. �� 1614.302(c),
1614.107(a)(4).
Upon review, we find that complainant filed a mixed-case appeal with
the MSPB (MSPB Docket No. 200800908) on March 2, 2008, prior to his EEO
complaint which was filed on May 2, 2008. Because complainant thus
elected to proceed in that forum, i.e., before the MSPB, the agency
properly dismissed his EEO complaint. Therefore, the agency's final
decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
November 13, 2008
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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