01A34187
03-31-2004
Angel E. Cordero, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Angel E. Cordero v. U.S. Department of Agriculture
01A34187
03-31-04
.
Angel E. Cordero,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A34187
Agency No. 010650
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4) for raising the
same matter in an appeal to the Merit Systems Protection Board (MSPB).
In a complaint dated July 16, 2001, complainant alleged that he was
subjected to discrimination on the bases of national origin (Dominican
Republic), physical disability (neuropathy of the arms and legs, scar
revision, tenolysis and neurolysis) and mental disability (post-traumatic
stress disorder), when on February 25, 2001, he was demoted and reassigned
to the position of Plant Protection Technician, GS-0421-5.
As defined by Commission regulations, 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 elect to 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). Moreover, whichever is filed first shall be
considered an election to proceed in that forum. See Dillon v. United
States Postal Service, EEOC Appeal No. 01981358 (December 23, 1998)(citing
Milewski v. United States Postal Service, EEOC Request No. 05920429 (June
11, 1992)). Here, the record reflects that in a letter dated January 30,
2002, complainant's attorney informed the agency's EEO Investigator that
complainant's EEO discrimination complaint had been appealed to the MSPB.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
____03-31-04______________
Date