[Redacted], Josefina L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022002504 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Josefina L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022002504 Agency No. 4E-890-0073-21 DISMISSAL OF APPEAL On April 2, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a March 4, 2022 final Agency decision (FAD) on her equal employment opportunity (EEO) complaint of 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 During the period at issue Complainant was employed by the Agency as a Manager, Customer Services, EAS-20, at the Las Vegas Post Office, Huntridge Station, in Las Vegas, Nevada. On September 7, 2021, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on race (Black) and reprisal for prior protected EEO activity under Title VII when, on April 16, 2021, she was issued a Notice of Proposed Removal1 for the third time on the same charges. After the Agency investigated the EEO complaint, it provided Complainant with the report of investigation and a notice of right to request a hearing before an EEOC Administrative Judge (AJ). Later, the Agency issued a FAD finding no discrimination. According to the FAD, Complainant did not request a hearing. The instant appeal followed. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022002504 2 On appeal, Complainant contends that she timely requested a hearing. She also argues the merits of her complaint. In reply, the Agency argues that Complainant’s appeal should be dismissed because the April 16, 2021 notice of proposed removal is subsumed in the subsequent removal decision, which Complainant appealed to the MSPB. It submits copies of: (a) the January 20, 2022 final removal decision against Complainant that sustained the charges and all five specifications in the April 16, 2021 notice of proposed removal and terminated her effective January 28, 2022; (b) Complainant’s January 21, 2022 appeal to the Merit Systems Protection Board (MSPB); and (c) the initial decision by an MSPB AJ on the appeal, docketed as MSPB No. SF-0752-22-0202-I-1. The MSPB decision was issued following a hearing and reflects Complainant alleged race and sex discrimination. The MSPB AJ sustained the removal charge and all its specifications, upheld the removal, and found no discrimination.2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.302(b) states that an aggrieved person may initially file a mixed case complaint with the Agency or an appeal on the same matter with the MSPB, but not both. Adjudication of a case by the MSPB on its merits is tantamount to an election of remedies. Maldonado v. Army, EEOC Request No. 0520090312 (Jul. 30, 2010). Here, the proposed removal merged with the final removal decision and no longer exists. Roscoe P. v. Interior, EEOC Appeal No. 0120152937 (Nov. 9, 2017). The merits of Complainant’s removal, including her discrimination claims, are being adjudicated by the MSPB. Once the MSPB issues its final decision, Complainant may file a petition of review with the EEOC of the MSPB’s findings concerning her discrimination claims pursuant to 29 C.F.R. § 1614.303. Accordingly, Complainant’s current appeal is DISMISSED because Complainant elected the MSPB forum. 29 C.F.R. § 1614.107(a)(4).3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2 Complainant filed a petition for review of the MSPB’s initial decision with the Board, and as of March 1, 2023, it is still pending. 3 Because Complainant’s appeal is dismissed for this reason, we need not decide whether she timely requested a hearing. 2022002504 3 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022002504 4 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 9, 2023 Date