0120121163
12-05-2012
Babette C. Wray, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Babette C. Wray,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120121163
Agency No. 1C-431-0011-11
DISMISSAL
Complainant filed an appeal with this Commission from the Agency's decision dated November 25, 2011, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On January 7, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (tan), age (60), and in reprisal for prior protected EEO activity when: on November 12, 2010, she was sent home for no work available within her restrictions, due to the National Reassessment Process (NRP).1
In its November 25, 2011 final decision, the Agency found no discrimination and provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB) and not the EEOC.
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 EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R �1614.302(d)(l)(ii).
In the present matter, the Agency determined that Complainant's claim was a mixed case complaint and issued a final decision finding no discrimination. The final decision gave Complainant mixed case rights and instructed her to file with the MSPB, not the EEOC. Complainant however, filed her appeal from the Agency's final decision on a mixed case complaint with the EEOC, and it is DISMISSED.2
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
December 5, 2012
__________________
Date
1 Complainant also alleged disability as a basis of discrimination. However, the Agency determined that this portion of her complaint fell within a pending class complaint, McConnell v. U.S. Postal Service, Agency Case No. 4B-140-0062-06. Accordingly, Complainant's claim concerning being sent home based on disability, was processed separately under Agency Case No. 1C-431-0007-11, and held in abeyance pending adjudication of the McConnell class complaint.
2 We note that 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. 29 C.F.R. � 1614.302(c)(2)(ii).
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01-2012-1163
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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