01A32181_r
08-08-2003
Sylvester Casimier, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sylvester Casimier, Jr. v. United States Postal Service
01A32181
August 8, 2003
.
Sylvester Casimier, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32181
Agency No. 4G-700-0133-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 4, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
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 his formal complaint, filed on May 25, 2001, complainant alleged
that he was subjected to discrimination on the bases of race, color,
national origin, sex, disability, age, and in reprisal for prior EEO
activity when on March 21, 2001, he was informed that the Office of
Worker's Compensations (OWCP) was wrong for having denied his disability
claim that resulted in his termination on June 18, 1997.
In its June 18, 2001 final decision the agency dismissed the complaint on
the grounds that the same matter was raised in a prior complaint (Agency
No. 1G-701-0033-97), but that complainant did not file a formal complaint
under that agency number. The agency also dismissed the complaint on
the grounds of untimely complaint filing. The agency found that although
complainant had received the notice of the right to file a complaint on
April 9, 1997, and failed to file a formal complaint within the 15-day
time limit provided by EEOC Regulations.
On appeal, the Commission reversed and remanded the agency's decision
after finding that complainant never filed a prior complaint (Agency
No. 1G-701-0033-97) on the same issue raise in the instant complaint.
The Commission also found that the record shows that complainant received
the notice in question on May 19, 2001, and that his complaint was
filed on May 25, 2001, within the 15-day time limit period. On remand,
the agency was specifically ordered to process the remanded claims in
accordance with 29 C.F.R. � 1614.108. Casimier v. United States Postal
Service, EEOC Appeal No. 01A14352 (October 9, 2002).
The agency issued a new final decision on February 4, 2003, that is
the subject of the present appeal, dismissing the complaint for failure
to state a claim pursuant to 29 C.F.R. � 1614.107 (a)(1), finding that
an employee cannot use the EEO complaint process to lodge a collateral
attack on a proceeding in another forum, which in this case the agency
determined was a claim with the OWCP. The agency also dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds that
complainant had elected to pursue the issue of his termination with the
Merit Systems Protection Board (MSPB), and untimely complaint filing
pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency may dismiss claims alleging the same matters complainant
already has elected to pursue through an MSPB appeal. 29 C.F.R. �
1614.107(a)(4). We find the record reflects that complainant filed an
appeal with the MSPB on April 8, 1997 concerning his termination (MSPB
Docket No. DA-0752-97-0313-B-1), but did not file his EEO complaint until
May 25, 2001. Complainant elected to pursue his claim via the MSPB,
not the EEO process. 29 C.F.R. � 1614.302(b). Accordingly, we AFFIRM
the agency's final decision, dismissing the complaint pursuant to 29
C.F.R. � 1614.107(a)(4).<1>
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 8, 2003
__________________
Date
1 Because we are affirming the dismissal
of complainant's complaint for the reason stated herein, we will not
address the agency's alternative grounds for dismissal.