EEOC Appeal No. 0120160251
02-12-2016
Rodrigo C. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rodrigo C.1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160251
Agency No. 1E-981-0026-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 14, 2015, dismissing his mixed case 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. The Commission finds that the complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(d). The Agency's final decision is AFFIRMED.
ISSUE PRESENTED
Whether a Complainant who voluntarily dismissed his mixed case Merit Systems Protection Board (MSPB) appeal may proceed to file a formal mixed case complaint with the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a mail processing clerk at the Agency's South King County Delivery Distribution Center facility in Seattle, Washington. On April 24, 2015, Complainant received a Notice of Proposed Removal. Compl., at 3. Complainant initiated EEO pre-complaint processing on May 5, 2015. Complainant's App., at 3. On May 12, 2015, the Agency issued its Letter of Decision, creating a May 24, 2015 effective date. Agency Dismissal of Formal EEO Compl., at 1.2
On May 18, 2015, Complainant filed a mixed case appeal with the MSPB (docket no. SF-0752-15-0569-I-1). See Email regarding MSPB e-Appeal. Complainant filed a written request to voluntarily dismiss his appeal on July 17, 2015. MSPB Initial Decision, at 1. The MSPB granted the request on July 23, 2015, in an initial decision that would become final on August 27, 2015. Id., at 2.
Meanwhile, Complainant received an initial EEO interview on July 7, 2015. EEO Counselor's Report, at 1. On August 7, 2015, Complainant received a Notice of Right to File. Id. On August 17, 2015, Complainant filed a formal mixed case complaint alleging that the Agency subjected him to discrimination under Title VII of the Civil Rights Act. Agency Dismissal of Formal EEO Compl., at 1. On September 14, 2015, the Agency dismissed the complaint, stating that once Complainant elected to file his mixed case Appeal with the MSPB, he could not file a mixed case complaint with the EEOC. Agency Dismissal of Formal EEO Compl., at 1-2.
CONTENTIONS ON APPEAL
Complainant argues that he received ineffective and misleading assistance from his Union Steward and from the EEO counselor. See generally Complainant's Appeal. Complainant contends, for example, that his Union Steward told him he could withdraw his MSPB appeal and proceed with an EEO complaint. Complainant's Appeal, at 3.3 Complainant urges the Commission to allow his claims to survive dismissal.
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with an agency that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). Mixed case appeals are filed with the MSPB and allege an appealable agency action occurred because of discrimination. 29 C.F.R. � 1614.302(a)(2). An aggrieved person may elect to file a mixed case complaint with an agency or a mixed case appeal with the MSPB, but not both. 29 C.F.R. � 1614.302(b).
Once a complainant elects to proceed in the MSPB forum, withdrawal does not negate the election; a complainant does not gain the right to switch to the EEO process once he withdraws his MSPB appeal. Rodewald v. U.S. Postal Serv., EEOC Appeal No. 0120102522 (Nov. 12, 2010) (citations omitted).
On May 18, 2015, Complainant filed an appeal with the MSPB, thereby making his election. While it is unfortunate that Complainant felt misled by his Union Steward, the fact remains that he made an election. Although Complainant voluntarily dismissed his mixed case appeal, he cannot now bring a mixed case complaint with the agency.
CONCLUSION
The Agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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
2-12-16
__________________
Date
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.
2 Complainant states that although the Letter of Decision is dated May 12, he did not receive it until May 18. Complainant's Appeal, at 2. However, an email provided by Complainant shows he was forwarded a pdf copy of the Letter of Decision on May 14.
3 "I also had the impression that I could withdraw my MSPB without it affecting my EEO. I mentioned it to [the Union Steward] however; he informed me that it won't affect my EEO."
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