01A23152_r
08-29-2002
Martin L. Holman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Martin L. Holman v. Department of Veterans Affairs
01A23152
August 29, 2002
.
Martin L. Holman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23152
Agency No. 200L-0626-2001300724
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 29, 2002, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability when:
He was charged with threatening a co-worker which resulted in his removal
from his employment with the agency in March 1996.
The agency dismissed complainant's claim pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(4), for raising the same matter before
the Commission which complainant previously elected to appeal to the
Merit Systems Protection Board (MSPB).
The record shows that complainant filed a mixed case appeal with
the MSPB on April 24, 1996, regarding his removal, the charge of
threatening a co-worker and charges of absence without leave. In his
MPSB appeal, complainant raised claims of discrimination on the basis
of his disability.<1> Subsequently, on October 25, 2001, complainant
filed the instant EEO complaint claiming discrimination on the basis of
disability when he was charged with threatening a co-worker and removed
from his employment with the agency.
A 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). An aggrieved person
may elect to initially file a mixed case complaint 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). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
After carefully reviewing the record on appeal, we find that complainant
made an election to raise his claims of discrimination and appealed the
removal action through the MSPB. Accordingly, the agency's decision to
dismiss complainant's complaint was proper and is hereby AFFIRMED for
the reasons set forth herein.
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
August 29, 2002
__________________
Date
1The record reflects that on October 31,
1996, the MSPB issued a decision affirming the termination. (Docket
No. AT-0752-96-0550-I-1).