0120080233
12-28-2007
Leon Singleton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leon Singleton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080233
Agency No. 1G781003007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 20, 2007, 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, complainant alleged that he was subjected to discrimination on
the bases of race (African-American) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when, on April
12, 2006, he was issued a letter of proposed removal and denied union
representation, and then given a letter of removal on June 30, 2006. The
agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
because complainant had already filed an appeal with the Merit Systems
Protection Board (MSPB).
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). 29 C.F.R. �
1614.107(a)(4) provides that an agency shall dismiss a complaint where
the complainant has raised the matter in an appeal to the MSPB and 29
C.F.R. � 1614.302 indicates that the complainant has elected to pursue
the non - EEO process. In the instant case, complainant elected to
file with the MSPB.1 On November 29, 2006, the MSPB issued an Initial
Decision upholding the removal. Complainant sought review by the MSPB,
but his request was denied on April 9, 2007. Complainant then contacted an
EEO counselor on June 4, 2007. The Commission finds that the complaint
was properly dismissed. Complainant appealed the matter to the MSPB.
As such, the agency's FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
December 28, 2007
__________________
Date
1 While the MSPB had jurisdiction over the actual removal action, issues
surrounding the letter of proposed removal merged with the actual removal
once it was effectuated.
??
??
??
??
2
0120080233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120080233