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.