01A43786
09-28-2004
James E. Slate, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James E. Slate v. United States Postal Service
01A43786, 01A44736, 01A44737
September 28, 2004
.
James E. Slate,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A43786, 01A44736, 01A44737
Agency Nos. 4C-270-0083-03, 4D-270-00140-00,4D-270-0108-01
Hearing Nos. 140-2004-00081X, 140-2003-08365X
DISMISSAL OF APPEAL
Complainant filed three appeals with this Commission concerning his three
complaints 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.
In Agency Case No. 4C-270-0083-03 complainant alleged that he was
subjected to discrimination on the bases of disability, age and reprisal
for prior EEO activity when:
Effective June 25, 2001, complainant was removed from the agency's rolls.
On August 8, 2003, the agency issued a final decision dismissing Agency
Case No. 4C-270-0083-03 pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. Alternatively, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4), for
raising the same matter in another forum.
In Agency Case No. 4D-270-00140-00, complainant alleged that he was
subjected to discrimination on the bases of disability, age and reprisal
when:
On June 8, 2000, complainant's supervisor did not allow him to leave for
a doctor's visit and told him that he had to obtain medical clearance
before he returned to work;
On June 9, 2000, complainant returned to work with a doctor's note but
was informed that he was not cleared to return to work;
On June 30, 2000, complainant was given a Notice of Proposed Removal.
On June 3, 2004, an EEOC Administrative Judge (AJ) issued an Order of
Dismissal finding that complainant failed to file a formal complaint in
a timely manner in Agency Case No. 4D-270-0140-00. Additionally, the AJ
stated that the claims raised in the present complaint are inextricably
intertwined with similar claims previously raised and adjudicated in
both the Merit Systems Protection Board (MSPB) and the EEOC.
In Agency Case No. 4D-270-0108-01, complainant alleged that he was
subjected to discrimination on the bases of disability, age and reprisal
for prior EEO activity when:
Complainant was issued a letter of warning dated December 16, 1999;
Complainant was issued a Seven Day Suspension dated February 1, 2000;
Complainant was issued a Fourteen Day Suspension dated March 17,
2000; and
Complainant was issued a Notice of Proposed Removal dated June 29, 2000.
On June 3, 2004, an EEOC AJ issued an Order of Dismissal dismissing
Agency Case No. 4D-270-0108-01 pursuant to 29 C.F.R. � 1614.107(a)(9).
Specifically, the AJ noted that on May 26, 2004, the Commission's Office
of Federal Operations upheld the agency's dismissal of Agency Case
No. 4D-270-0108-01 on the grounds that complainant elected to pursue
the subject claims in a prior MSPB appeal.
On August 31, 2004, complainant filed a civil action (identified as
Civil Action No. 1:04CV00782) in the United States District Court for the
Middle District of North Carolina. The record further discloses that the
claims raised therein are the same or inextricably intertwined as those
raised in the three above described complaints. 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. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October
25, 1988). Accordingly, complainant's appeals are hereby DISMISSED.
See 29 C.F.R. � 1614.409.
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
September 28, 2004
__________________
Date