01A43316
07-29-2004
Stephen M. Zanowic, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Stephen M. Zanowic v. Department of Justice
01A43316
July 29, 2004
.
Stephen M. Zanowic,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A43316
Agency No. M040017
DECISION
Complainant filed an appeal with this Commission from the March 18,
2004 agency decision dismissing his complaint, pursuant to 29 C.F.R. �
1614.107(a)(4) on the grounds that complainant had filed an appeal with
the Merits System Protection Board (MSPB).
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior EEO activity when he
was terminated from his position effective August 9, 2003.
In its decision dismissing the complaint, the agency noted that
complainant appealed his termination to the MSPB on September 4, 2003,
and filed a complaint of discrimination on January 27, 2004.
EEOC Regulation 29 C.F.R. �1614.302 permits an employee complaining of
an action that is appealable to the MSPB to file a mixed case complaint
with the agency or filed a mixed case appeal with the MSPB pursuant to
5 C.F.R. � 1201.151, but not both. 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. 01981356 (December 23,
1998) (citing Milewski v. United States Postal Service, EEOC Request
No. 05920429 (June 11, 1992)). EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
requires the dismissal of a complaint where the complainant has raised
the matter in an appeal to the MSPB.
The records reveal that complainant filed an appeal of his termination
with the MSPB on September 4, 2003 in MSPB No. AT-0752-03-0895-I-1.
The record also reveals that the MSPB Administrative Judge (AJ) issued
an Initial Decision, dated May 20, 2004, sustaining the agency's
termination of complainant. The MSPB determined that complainant
was not discriminated against on the bases of disability or reprisal,
noting that complainant was not subjected to a hostile work environment
because of protected activity. The record reveals that complainant filed
his complaint of discrimination with the agency on January 27, 2004.
We therefore find that complainant appealed his termination first to the
MSPB and, by so doing, elected to proceed in that forum. To the extent
that complainant is claiming in his complaint that he was subjected to
continuous harassment at work because he was outspoken about racism within
the agency and that the agency's harassment culminated in his dismissal,
the Commission finds that the issue of complainant's harassment is
inextricably intertwined with the issue of his termination. See Bivens
v. Department of the Navy, EEOC Request No. 05890476 (April 3, 1990).
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
July 29, 2004
__________________
Date