0120120396
09-20-2013
Hou Hsu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Hou Hsu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120396
Hearing No. 550-2008-00361X, 550-2009-00124X, 550-2009-00333X, 550-2009-00334X and 550-2010-00065X
Agency No. 4F-940-0075-07, 4F-940-0011-08, 4F-940-0092-08, 4F-940-0213-08 and 4F-940-0088-09
DISMISSAL OF APPEAL
On October 27, 2011, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the September 26, 2011 final Agency action implementing the EEOC Administrative Judge's (AJ) decision which found no discrimination on 28 of 29 issues and found discrimination one on the remaining one on five joined complaints of unlawful employment discrimination in violation, as applicable, of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a letter carrier at the Agency's Sunnyvale Main Post Office in Sunnyvale, California.
On June 22, 2007, November 20, 2007, May 13, 2008, October 14, 2008, and July 9, 2009, Complainant filed five formal complaints of discrimination alleging that the Agency subjected him to discrimination, as applicable, based on his race (Asian), national origin (Chinese), disabilities, age (63), and reprisal for prior protected EEO activity regarding 29 issues occurring from March 21, 2007 to approximately August 2009. These included letters of warning, suspensions, isolation, being asked to provide medical documentation, a supervisor saying that his filing EEO complaints was a waste of time and money, having to relinquish his route and becoming an unassigned regular, job offers and tasks which violated his medical restrictions, not getting work and being sent home, not being awarded a specified route, a hostile work environment, not being awarded a T6 bid, and not being permitted to work as a 204-B (acting supervisor).
On May 17, 2013, Complainant filed a civil action (identified as Civil Action No. 5:13-cv-02253) in the United States District Court for the Northern District of California.1 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, Complainant's appeal is hereby dismissed. See 29 C.F.R. � 1614.409.
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 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
September 20, 2013
__________________
Date
1 The Court's online docket shows that as of September 19, 2013, the civil action is still pending.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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