U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160018 Agency No. 4E-570-0025-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated May 19, 2015, dismissing a formal 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 period at issue, Complainant worked as a Laborer Custodian at the Agency's facility in Great Falls, Montana. On February 10, 2015, Complainant filed an appeal with the Merit Systems Protection Board (MSPB). The appeal was returned to him because it lacked specific information to allow the MSPB to proceed. On February 19, 2015, Complainant initiated EEO Counselor contact. On March 9, 2015, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) concerning his removal. The MSPB appeal was assigned Docket Number DE-0752-15-0256-I-1. On April 6, 2015, the MSPB Judge's initial decision declared that the MSPB had jurisdiction over the appeal and agreed to the Complainant's representative's request to dismiss his appeal without prejudice, provided that the MSPB would automatically re-file no later than September 30, 2015. On May 1, 2015, Complainant received a notice of a right to file a formal complaint. On May 5, 2015, Complainant submitted a motion to reopen the MSPB appeal. The appeal was docketed as DE-0752-15-0256-I-2. On May 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to reprisal for prior protected EEO activity when: 1. on September 6, 2014, Complainant was placed on emergency placement in off-duty status, then issued a notice of proposed removal dated October 6, 2014, and subsequently issued a letter of decision making the removal effective February 6, 2015. On May 19, 2015, the Agency issued its final decision. The Agency stated that Complainant was initially placed on emergency off-duty status because he allegedly improperly touched a co-worker. The Agency stated that a review of the record established that he e-filed an appeal with the Merit Systems Protection Board (MSPB) prior to the filing of his formal EEO complaint on May 7, 2015. The Agency stated that Complainant may have elected to initially file either a mixed case complaint with the Agency or a mixed case appeal directly with the MSPB pursuant to 5 C.F.R. §1201.151, but not both. Since Complainant made an election to proceed before the MSPB in regards to his removal, his formal complaint of discrimination was dismissed in accordance with 29 C.F.R. §1614.107(a)(4) and 29 C.F.R. §1614.302(c). On May 21, 2015, the MSPB Judge acknowledged that Complainant had re-filed the appeal that had been dismissed without prejudice. The Judge provided both parties with 15 calendar days in which to confer to define the issues, agree to stipulations, and discuss the possibility of settlement. On June 29, 2015, Complainant withdrew his MSPB appeal. On July 30, 2015, the MSPB Judge stated that the appeal was dismissed as it was withdrawn, and that Complainant stated that he was pursuing the Agency's adverse action in other administrative forums. On August 5, 2015, Complainant requested from the Agency to "unmix" Complainant's formal complaint. On August 11, 2015, the Agency responded to the "unmix" request by stating that the case had been properly dismissed and would not be reinstated. The instant appeal followed. On appeal, Complainant, through his representative, contends that his claims were not under the jurisdiction of the MSPB at the time he filed his formal EEO complaint on May 7, 2015. Complainant states that on April 6, 2015, the MSPB granted his Motion to Dismiss without Prejudice, so that at the time he filed his formal EEO complaint, the MSPB, technically, no longer had jurisdiction. Complainant contends that it was not until after May 21, 2015, that the MSPB resumed jurisdiction over the appeal. Complainant contends, that from a technical perspective, the MSPB should have rejected the Motion to Reinstate because Complainant had already made a selection to proceed in the EEO arena on May 7, 2015. Complainant states that he subsequently withdrew his MSPB appeal on June 29, 2015, when he requested that the Agency un-mix the complaint and place the issues back under the jurisdiction of the Commission. In response, the Agency reiterated arguments made in its final decision. It also noted that it had received a request from Complainant requesting to "unmix" the case. The Agency noted that a "mixed case appeal" is defined at 29 C.F.R. §1614.302(a)(2) as an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap, or age. The Agency stated that it would be unable to "unmix" a complaint that, by statute or regulation, is a mixed complaint. ANALYSIS AND FINDINGS EEOC Regulation 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. EEOC Regulation 29 C.F.R. § 1614.302(b)provides that an aggrieved person may elect to file a mixed case EEO complaint with an agency pursuant to 29 C.F.R. Part 1614, or a mixed case appeal on the same matter with the MSPB, pursuant to 5 C.F.R. §1201.151, but not both. The record reveals that Complainant filed an appeal regarding his removal with the MSPB on March 9, 2015. Complainant then filed a formal EEO complaint with the Agency on May 7, 2015. While Complainant subsequently withdrew his MSPB appeal on June 29, 2015, this did not negate his prior election. See Hammond v. General Services Administration, EEOC Request No. 05940428 (August 25, 1994); Dean v. United States Postal Service, EEOC Appeal No. 01942928 (June 29, 1994); Broom v. Dept. of Army, EEOC Appeal No. 01985215 (Oct. 18, 1999). In the instant case, we find that complainant elected the MSPB process and cannot now choose the EEO process for the same matter. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision dismissing the formal complaint. 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 January 18, 2016 __________________ 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 0120160018 2 0120160018