01a00830
06-22-2000
Gary Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gary Johnson, )
Complainant, )
)
v. ) Appeal No. 01A00830
) Agency No. 4-C-190-0036-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 12, 1999, complainant filed a timely appeal with this
Commission from an agency decision pertaining to his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of physical disability and in reprisal for prior EEO activity
when:
On November 25, 1998, he was issued an Emergency Placement in off-duty
status; and
By Letter of Decision, dated January 11, 1999, he was removed from
employment.
Pursuant to EEOC Regulations, the agency dismissed claim (1) as stating
the same claim as that pending before or already decided by the agency,
and claim (2) for failure to state a claim. Specifically, the agency
determined that claim (1) was raised previously in agency case number
4-C-190-0027-99, and that claim (2) had been raised in an appeal with
the Merit Systems Protection Board (MSPB) and was therefore in the
wrong forum.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
The record discloses that in a complaint filed with the agency a
month prior to the present complaint (case number 4-C-190-0027-99),
complainant claimed that on November 25, 1998, he was discriminatorily
issued an Emergency Placement in off-duty status for fourteen days.
Therefore, as complainant's claims are based on the same set of facts
and circumstances, they state the same claim. Consequently, claim (1)
was properly dismissed.
With regard to claim (2), the record indicates that complainant appealed
his removal to the MSPB on January 26, 1999, and filed the present formal
complaint on April 27, 1999. On May 11, 1999, complainant's MSPB appeal
was dismissed without prejudice until the Office of Personnel Management
reviewed complainant's disability retirement application and issued a
decision. The MSPB dismissal specifically gave complainant the right to
refile his appeal within thirty days of his receipt of OPM's decision.
An aggrieved person may initially file a mixed case complaint<2>
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).
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency shall dismiss
a complaint where the complainant has raised the matter in an appeal to
the MSPB and, under 29 C.F.R. � 1614.302, has elected to pursue the non -
EEO process.
In the present case, complainant elected to file an appeal with the MSPB
concerning his removal prior to filing his present EEO complaint, and
therefore elected to pursue his removal through the non - EEO process.
The dismissal of complainant's MSPB appeal without prejudice does not
negate complainant's election to pursue the matter with the MSPB.
See Mathis v. Department of Agriculture, 01983166 (June 23, 1998)
(dismissal without prejudice does not relieve election of non -
EEO process where complainant was given right to re-file complaint).
Therefore, the agency properly dismissed complainant's claim (2) for
alleging matters previously raised in an MSPB appeal.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 22, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2A 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).