01995990
03-02-2000
Ronald P. Cohen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald P. Cohen, )
Complainant, )
)
v. )
) Appeal No. 01995990
William J. Henderson, ) Agency No. 1B-065-0008-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 24, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dismissing a portion of his complaint
on the grounds that he filed a civil action on the same matters raised
in his complaint.<1> Although direct appeals of decisions partially
dismissing a complaint are no longer permissible under the regulations
revised on November 9, 1999, the agency has informed the Commission that
the remainder of the complaint was the subject of an agency decision on
March 2, 1999. Therefore, we shall consider the instant appeal because
there are apparently no remaining claims from the instant complaint
pending anywhere in the administrative EEO process.
On January 12, 1999, complainant filed a formal complaint claiming that
he was discriminated against based on religion when:
1) On approximately October 31, 1998 he became aware that the Manager
of Distribution Operations referred to him in an ethnically offensive
manner, while engaged in a conversation with another supervisor; and,<2>
2) On January 6, 1999, he was issued a �Letter of Warning in Lieu of
Time-Off Suspension�, charging him with conduct unbecoming a supervisor
and failure to follow instructions.
In March 1999, the agency accepted claim 2 for investigation and
further processing. Thereafter, on July 20, 1999, the agency issued
a FAD dismissing claim 2 on the grounds that complainant filed a civil
action on the same matter.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred cited as 29 C.F.R. � 1614.107(a)(3)) allows for the dismissal
of a complaint that is pending in a United States District Court in
which the complainant is a party. A review of the record reveals that
complainant filed a civil action in the United States District Court for
the District of Connecticut (Civil Action No. 399CV01019 AWT) on May
27, 1999, regarding the same matter that was raised in his formal EEO
complaint. Accordingly, the agency's decision to dismiss complainant's
complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 2, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.
2 The agency issued a FAD on March 2, 1999 dismissing claim 1 for failure
to state a claim. Complainant's appeal was dismissed by the Commission.
See Cohen v. U.S. Postal Service, EEOC Appeal No. 01993089 (August 16,
1999).