01981154
11-27-1998
William S. Holly II, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William S. Holly II, )
Appellant, )
)
)
v. ) Appeal No. 01981154
) Agency No. 4-J-460-0162-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 18, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") dated October 21, 1997, pertaining
to his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. In his complaint, appellant alleged that he was
subjected to discrimination on the basis of age (DOB 12/4/49) when:
On June 17, 1997, appellant was placed on an Emergency Placement; and
On June 30, 1997, appellant was issued a Notice of Proposed Removal.
The agency dismissed allegation (2) pursuant to EEOC Regulation 29
C.F.R. �1614.107(e), as alleging that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, was
discriminatory.
The record discloses that on August 29, 1997, appellant was issued a
Letter of Decision removing him from his employment with the agency.
Additionally, the record reveals that on September 25, 1997, appellant
filed an appeal of his removal with the Merit Systems Protection Board
("MSPB").
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges
that a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory. We note, however,
that when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to have
merged with the proposal. Charles v. Department of the Treasury, EEOC
Request No. 05910190 (February 25, 1991).
In the instant case, the record indicates that the on August 29, 1997,
the agency notified appellant of his removal. Accordingly, the agency
should have properly considered the removal action to have merged with
appellant's allegation concerning the proposed removal. Based on the
foregoing, we find that the agency erred in dismissing this allegation
pursuant to 29 C.F.R. �1614.107(e).
However, EEOC Regulation 29 C.F.R. �1614.107(d) provides, in relevant
part, that an agency shall dismiss a complaint, or portion thereof,
where the complainant has raised the matter in an appeal to the MSPB
and elected to pursue the non-EEO process. Here, although appellant
initially chose to utilize the EEO process when he received notice of
his proposed removal, the record indicates that on September 25, 1997,
appellant elected to challenge his actual removal through an appeal
to the MSPB. Ordinarily, appellant's election to use the EEO process
to challenge his removal would have precluded his use of the MSPB.
However, in view of the present status of appellant's matters, i.e.,
allegation (1) is pending a hearing before an Administrative Judge (AJ)
and appellant's appeal has been filed with the MSPB for over one year,
we find that this allegation in appellant's EEO complaint should be
dismissed pursuant to 29 C.F.R. �1614.107(d).
Accordingly, the agency's final decision dismissing allegation (2)
is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov. 27, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations