Nathan S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 24, 2016

0120142659 (E.E.O.C. Aug. 24, 2016)

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

Nathan S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01-2014-2659

Agency No. 4G-780-0231-13

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the June 14, 2014 final Agency
decision finding no discrimination with regard to 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.

BACKGROUND

Complainant worked as a Clerk at the Agency’s Post Office facility in McAllen, Texas. On
October 25, 2013, Complainant filed a formal complaint in which he alleged that a Customer
Services Supervisor discriminated against him on the basis of disability (long-term effects of
injuries to right elbow, back, and right shoulder) on August 9, 2013, by forcing him to
perform work that exceeded his medical restrictions, effectively denying him a reasonable
accommodation.

On September 8, 2014, Complainant filed a civil action (identified as Civil Action No. M-14-
787) in the United States District Court for the Southern District of Texas - McAllen Division.
Paragraph (34) of the civil action reads: “On or about August 9, 2013, Plaintiff asserts that
[the CSS] in a harassing and discriminatory manner forced Plaintiff to violate his medical
restrictions and his modified job offer of July 16, 2013.”

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Thus, the claim raised in paragraph (34) of Complainant’s civil action is the same as that 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).

CONCLUSION

Accordingly, Complainant’s appeal is hereby dismissed. See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 24, 2016
Date