U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Israel F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120160291 Agency No. 4C-150-0068-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated October 1, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Monroeville Post Office in Monroeville, Pennsylvania. On September 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), religion (Christian), and age (47) when he received a Notice of Proposed Removal, dated May 22, 2015, for Unsatisfactory Performance/Failure to Meet Reporting requirements, and a Letter of Decision - Removal, dated June 15, 2015, removing Complainant from his position effective June 20, 2015. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.17(a)(4) on the ground that Complainant had raised the matter in an appeal to the Merit Systems Protection Board (MSPB) prior to filing a formal EEO complaint with the Agency. Complainant had filed an appeal to the MSPB on June 30, 2015, which was dismissed in an order dated September 8, 2015, after Complainant voluntarily withdrew the appeal. Complainant filed an appeal of the Agency's dismissal of his claim with the EEOC on October 23, 2015. CONTENTIONS ON APPEAL Complainant raises no contentions on appeal. The Agency contends that the claim should be dismissed as a mixed-case pursuant to 29 C.F.R. § 1614.107(a)(4). 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, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). The regulation found at 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 ...." The Commission has held that once a complainant elects to proceed in the MSPB forum, the withdrawal of the MSPB appeal does not negate a prior election. See Hammond v. General Serv. Admin., EEOC Request No. 05940428 (Aug. 25, 1994); Doolittle v. U.S. Postal Serv., EEOC Appeal No. 0120081329 (Mar. 12, 2009). See also, Bowers v. Department of Def., EEOC Appeal No. 0720070012 (Mar. 22, 2010); Gilmore v U.S. Postal Serv., EEOC Appeal No. 0120091537 (June 10, 2009). Thus, the Commission will affirm the dismissal of a mixed-case complaint even when the complainant has voluntarily withdrawn his appeal with the MSPB. Rodewald v. U.S. Postal Serv., EEOC Appeal No. 0120102522 (Nov. 12, 2010). In this case, Complainant filed an appeal with the MSPB on June 30, 2015, and notified the MSPB of his voluntary withdrawal of the appeal on August 24, 2015. The MSPB then dismissed his appeal in an order dated September 8, 2015. Complainant filed his formal EEO complaint with the Agency on September 14, 2015, several months after filing his appeal with the MSPB. Despite the Complainant's voluntary withdrawal of his MSPB appeal, the initial election to pursue the non-EEO process and file an appeal with the MSPB bars Complainant from also filing an EEO complaint with the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency's decision to dismiss Complainant's complaint on the ground that he previously elected to proceed before the MSPB was proper. The Agency's final action therefore 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 February 23, 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 0120160291 4 0120160291