01a10927
02-27-2001
Daniel C. Russo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel C. Russo v. United States Postal Service
01A10927
February 27, 2001
.
Daniel C. Russo,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10927
Agency No. 1C-191-0072-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 17, 2000, dismissing his complaint of unlawful
employment discrimination.<1> In a June 29, 1998 formal complaint,
complainant alleged that he was subjected to discrimination on the bases
of age (D.O.B. 8/12/45) and national origin (Italian-American) when (1)
in December of 1995, he was subjected to discipline in the South Jersey
District office for computer misuse while other employees who allegedly
committed the same infraction were not similarly disciplined; (2) South
Jersey District officials misled the MSPB regarding the discipline they
took against the other employees; and (3) in March 1999, complainant
discovered and reported misuse of Philadelphia District Postal computer
systems and was accused of misconduct.
Based on a review of the record, we find that the agency properly
dismissed issue (1) of complainant's complaint, pursuant to the
regulation set forth at 29 C.F.R. � 1614.107(a)(4), for electing to
raise the same matter in an appeal to the MSPB. The record shows that
complainant filed an MSPB appeal on April 12, 1996, from a December 6,
1995 decision reducing his pay and grade as a result of his improper use
of the agency's computer system.<2> With regard to issue (2), we find
that although the agency dismissed this issue pursuant to 29 C.F.R. �
1614.107(a)(4), this issue is more properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. Finally, we find
that the agency properly dismissed issue (3), pursuant to 29 C.F.R. �
1614.107(a)(1), for raising the same matter that is pending before or
has been decided by the agency or Commission. The record reveals that
complainant raised the issue of his discovery of pornography on computers
in the Philadelphia District Office in EEOC Appeal No. 01A00861.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 27, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission previously remanded this matter to the agency for
clarification of the issues in Russo v. United States Postal Service,
EEOC Appeal No. 01986781 (April 8, 1999).
2The MSPB denied complainant's petition for review on July 22, 1997.
On September 4, 1998, the Federal Circuit affirmed the MSPB's decision.