James Hickok, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 15, 2005
01a53909 (E.E.O.C. Sep. 15, 2005)

01a53909

09-15-2005

James Hickok, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James Hickok v. United States Postal Service

01A53909

9/15/2005

.

James Hickok,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53909

Agency No. CC-841-0003-03

DISMISSAL OF APPEAL

Complainant filed a timely appeal with this Commission from the final

agency decision dated March 29, 2005, 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 Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.

Complainant initiated EEO Counselor contact on January 11, 2002.

Informal efforts to resolve his concerns were unsuccessful. In his

formal complaint, filed on March 10, 2004, complainant claimed that

he was subjected to discrimination on the bases of disability and in

reprisal for prior EEO activity.<1>

In its final decision, dated March 29, 2005, the agency determined that

complainant's formal complaint was comprised of the following claim:

as a disabled employee who filed a CA-2 claim with the Department of

Labor, [complainant] was denied limited duty accommodation while [his]

claim was pending.

The agency dismissed complainant's complaint on the grounds that it

addressed the same matter raised in an appeal to the Merit Systems

Protection Board, pursuant to 29 C.F.R.� 1614.107(a)(4).

On appeal, complainant asserts that he has filed a civil action on this

matter and that �the complaint should be dismissed under 29 C.F.R. �

1614.107(a)(3) because of the pending civil action.�

The record reflects that complainant filed a civil action (identified

as Civil Action No. 2:04CV00573 DAK) on June 22, 2004, in the United

States District Court for the District of Utah. The record further

discloses that the claims raised therein encompass the claim raised in

the instant complaint. Specifically, complainant states that the civil

action was filed under �Title VII...and the Rehabilitation Act [for]

[d]emotion due to medical condition.� In addition, in his Notice of

Appeal form dated April 27, 2005, complainant indicates that a civil

action has been filed in connection with this complaint.

The regulation found at 29 C.F.R. � 1614.409 provides that the filing

of a civil action "shall terminate Commission processing of the appeal."

Commission regulations mandate dismissal of the EEO complaint under these

circumstances so as to prevent a complainant from simultaneously pursuing

both administrative and judicial remedies on the same matters, wasting

resources, and creating the potential for inconsistent or conflicting

decisions, and in order to grant due deference to the authority of

the federal district court. See Stromgren v. Department of Veterans

Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of

Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS,

EEOC Request No. 05880114 (October 25, 1988).

Accordingly, complainant's appeal is hereby DISMISSED. See 29 C.F.R. �

1614.409.

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

9/15/2005

Date

1The record reflects that the instant

complaint was initially processed as a class complaint. Subsequently, an

EEOC Administrative Judge issued a decision denying class certification

and complainant's complaint was returned to the agency to be processed

as an individual complaint.