0120112398
08-29-2012
Willie J. Moore, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Willie J. Moore,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112398
Hearing No. 440-2011-00040X
Agency No. 1J-607-0046-10
DISMISSAL
Complainant filed an appeal with this Commission from the Agency's decision dated December 20, 2010, concerning 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.
BACKGROUND
During the relevant time, Complainant was employed as a full-time Mail Processing Clerk at the Agency's Chicago, Illinois Processing and Distribution Center. Complainant filed a complaint dated August 7, 2010, alleging that he was subjected to discrimination on the basis of sex (male) and in reprisal for prior protected EEO activity when: on June 15, 2010, Complainant was given a modified job offer for two hours of work under the National Reassessment Process (NPR).1
On August 25, 2010, the Agency issued an Acceptance of Complaint-Mixed Case. Therein, the Agency found that Agency Case No. 1J-607-0046-10 was a mixed case complaint and informed Complainant that after an investigation and the issuance of a final agency decision, he could appeal to the Merit Systems Protection Board (MSPB), not the EEOC.
On December 20, 2010, the Agency issued a final decision finding no discrimination with respect to Complainant's sex and retaliation claims. The decision gave Complainant appeal rights to the MSPB.2
ANALYSIS AND FINDINGS
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, but not both. 29 C.F.R. �1614.302(b).
As a general matter, if complainant is dissatisfied with the agency's final decision on a mixed case complaint, complainant may appeal the matter to the MSPB (not the EEOC) within 30 days of receipt of the agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii). At the time the agency issues its final decision on a mixed case complaint, the agency shall advise complainant of the right to appeal the matter to the MSPB (not the EEOC) within 30 days of receipt and of the right to file a civil action as provided at 29 C.F.R. � 1614.310(a). Individuals who have received a final decision from the MSPB on the appeal of a final decision on a mixed case complaint may petition the EEOC to consider the MSPB's decision. 29 C.F.R. �1614.303(a).3
In the instant matter, the Agency determined that Complainant's complaint was a mixed case complaint and issued a final decision finding no discrimination. The final decision gave Complainant mixed case rights and instructed him to file an appeal with the MSPB, not the EEOC. Complainant, however, filed his appeal with the EEOC. Under the Commission's regulations, Complainant improperly filed his appeal from the Agency's final decision on a mixed case complaint with the EEOC, and it is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 29, 2012
__________________
Date
1 Complainant's complaint also cited disability as a basis for discrimination. The Agency determined that the disability portion of the complaint falls within a pending class complaint, McConnell et al. v. United States Postal Service, Agency No. 4B-140-0062-06. The Agency informed Complainant the disability claim was being held in abeyance pending the resolution of the McConnell class complaint along with his previously filed complaint under Agency No. 1J-607-0022-10. The Agency informed Complainant the bases of sex and reprisal would be processed under Agency No. 1J-607-0046-10.
2 We note that Complainant also raised the same matter before an EEOC Administrative Judge who dismissed the case. Under the Commission's regulations, complainants are not afforded an opportunity to have a hearing before an EEOC AJ on mixed cases. 29 C.F.R. �1614.302(d).
3 The Commission's regulations require that should the MSPB dismiss an appeal for lack of jurisdiction, the agency is required to recommence processing the matter as a non-mixed case complaint. 29 C.F.R. � 1614.302(c)(2)(ii).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2011-2398
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112398