01A31478_r
05-12-2003
Arthur W. Heredia, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Drug Enforcement Administration), Agency.
Arthur W. Heredia v. Department of Justice
01A31478
May 12, 2003
.
Arthur W. Heredia,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Drug Enforcement Administration),
Agency.
Appeal No. 01A31478
Agency No. D-02-3689
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 9, 2002, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race, national origin, and sex when he
was terminated effective March 29, 2001.
The agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(4), on the grounds that complainant had elected to pursue the
issue of his termination with the Merit Systems Protection Board (MSPB).
The agency found that complainant raised two additional claims of
discrimination, relating to incidents that purportedly occurred on March
20, 2002, and on March 30, 2002.The agency dismissed these claims pursuant
to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate. The agency
found that it sent two letter requests to complainant (August 22 and
September 24, 2002) for clarification of the two March 2002 incidents,
and that complainant sent two separate responses (on August 27, and
October 7, 2002) which were unresponsive to the clarification requests.
Termination claim
The agency may dismiss claims alleging the same matters complainant
already has elected to pursue through an MSPB appeal. 29 C.F.R. �
1614.107(a)(4). We find the record reflects that complainant filed an
appeal with the MSPB on April 19, 2001 concerning his termination, but did
not file his EEO complaint until August 5, 2002. Therefore, complainant
elected to pursue his claim via the MSPB, not the EEO process. 29
C.F.R. � 1614.302(b). Accordingly, we AFFIRM the agency's final decision,
dismissing the termination claim pursuant to 29 C.F.R. � 1614.107(a)(4).
Incidents of March 20, 2002 and March 30, 2002
We note that upon review of the subject complaint, including complainant's
responses to the agency's requests for clarification of the referenced
dates of March 20 and 30, 2002, we find that complainant was not
attempting to raise any additional claims. It appears that the dates of
March 20 and 30, 2002, refer to some correspondence purportedly related
to complainant's termination and his MSPB appeal. Consequently, we find
that the dates of March 20 and 30, 2002, were properly dismissed from
further processing since they did not involve any separate processable
adverse actions.
Therefore, we determine that the agency's dismissal of the instant
complaint was proper for the reasons set forth herein and 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
May 12, 2003
__________________
Date