Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Feb 27, 2013

0120111464 (E.E.O.C. Feb. 27, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120111464

Agency No. 4A-006-0098-08

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the Agency's decision dated
November 24, 2010, dismissing his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission DISMISSES
Complainant’s appeal.

On October 27, 2010, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of disability and age when:

1. On an unspecified date, the Agency "reproach[ed]" Complainant because he did
not cooperate regarding a supervisor blackmailing two postmasters;
2. On unspecified date, the Agency falsified and used false information to justify
firing Complainant;
3. On unspecified date, the Agency violated Complainant's due process of law; and
4. On an unspecified date, the Agency failed to present documents in the
processing of this complaint to Complainant.1

On November 24, 2010, the Agency issued a final decision dismissing Complainant’s
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing the complaint. The

1 The Agency noted Complainant did not re-allege all of the issues raised during pre-complaint
counseling and found Complainant abandoned these issues in his complaint when he did not re-
allege them in his formal complaint.
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Agency noted that the Notice of Right to File a Complaint was received at Complainant’s
address of record on March 16, 2010, but that he did not file a formal complaint until October
27, 2010, which was beyond the 15-day time limit.

On July 11, 2011, Complainant filed a civil action (identified as Civil Action No. 3:11-cv-
01659-JAF) in the United States District Court for the District of Puerto Rico. The record
further discloses that the claims raised therein are the same as those raised in the instant
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. Dep’t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy
v. Dep’t of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal
Serv., EEOC Request No. 05880114 (October 25, 1988).

Accordingly, the Complainant’s appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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
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3
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

(S0610)
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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

February 27, 2013
Date