Terry D. Longo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 23, 2002
01A13575 (E.E.O.C. Jul. 23, 2002)

01A13575

07-23-2002

Terry D. Longo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Terry D. Longo v. United States Postal Service

01A13575

July 23, 2002

.

Terry D. Longo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A13575

Agency No. 4-I-531-0123-00

DISMISSAL OF APPEAL

Complainant filed this appeal with this Commission from the final

agency decision (FAD) concerning 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 the agency's October 17,

2000 letter accepting the complainant's complaint for investigation,

it indicated that the complaint was being accepted as a mixed case

complaint.<1>

In its FAD, the agency concluded that the complainant had not proven his

discrimination claims, and provided the complainant with appeal rights to

the MSPB, and not the Commission, pursuant to our regulations governing

mixed case complaints of discrimination. See 29 C.F.R. � 1614.302(d)(3)

(�At the time that the agency issues its final decision on a mixed case

complaint, the agency shall advise the complainant of the right to appeal

the matter to the MSPB (not EEOC) within 30 days of receipt . . . .�).

The complainant then filed the instant complaint with the Commission.

Accordingly, as the complainant erroneously appealed the agency's FAD

on his mixed case complaint directly to the Commission, that appeal

is DISMISSED.

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 23, 2002

Date

1 A �mixed case complaint� is defined in our regulations as �a complaint

of employment discrimination filed with a Federal agency based on

race, color, religion, sex, national origin, age or handicap related

to or stemming from an action that can be appealed to the [MSPB].� 29

C.F.R. � 1614.302(a)(1).