01A11485_r
09-07-2001
Waguih Guirguess, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Waguih Guirguess v. U.S. Postal Service
01A11485
September 7, 2001
.
Waguih Guirguess,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11485
Agency No. 1-A-086-0019-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dismissing his complaint of unlawful employment discrimination
brought pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
According to the record, complainant contacted an EEO Counselor on July
2, 1999, and subsequently filed a formal EEO complaint on March 11,
2000 (1-A-086-0019-99), setting forth six claims of discrimination,
including issuance of a Notice of Proposed Removal on July 7, 1999.
Complainant again initiated EEO Counseling on March 8, 2000, and filed
the captioned complaint on June 16, 2000, claiming discrimination on
the bases of national origin and reprisal (regarding the filing of
the previous complaint) concerning issuance of a Notice of Removal,
effective November 12, 1999.
On November 16, 2000, the agency dismissed the instant complaint on the
grounds of untimely EEO Counselor contact, finding that complainant's
March 8, 2000 EEO Counselor contact was beyond the 45-day limitation
period with reference to the November 12, 1999 removal. Alternatively,
the agency dismissed the instant complaint on the grounds that the
same matter had been fully adjudicated by the Merit System Protection
Board (MSPB). Shortly thereafter, the agency issued another decision
on November 21, 2000, accepting five of the claims set forth in the
March 11, 2000 complaint, but dismissing the sixth claim regarding the
proposed removal on the grounds that it had been raised in the June 16,
2000 complaint.
On appeal, in pertinent part, complainant argues that his EEO Counselor
contact on July 2, 1999 predates his appeal to the MSPB on November 15,
1999, and that he therefore effectively elected to pursue his removal in
the EEO forum. Additionally, complainant argues that no discrimination
claims were raised or addressed before the MSPB, so that the same matter
in the instant complaint was not adjudicated by the MSPB.
In response, the agency asserts that the complaint must be dismissed as
a collateral attack on the MSPB process, noting that the MSPB rendered a
decision on complainant's appeal from the notice of removal on February
28, 2000, and that the MSPB denied complainant's petition for review
on August 29, 2000, affirming the initial decision in a Final Order on
the same date. The agency also notes that complainant was informed of
the need to elect a forum during EEO Counseling, and that he elected
the MSPB forum when he filed his appeal with the MSPB on November 15,
1999, prior to filing either of his EEO complaints.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved person may
elect to initially file a mixed case complaint with an agency or may file
a mixed case appeal directly with the MSPB pursuant to 5 C.F.R. �1201.151,
but not both. 29 C.F.R. �1614.302(b). The employee must be informed that
he may not file both a complaint and an MSPB appeal, and that whichever
is filed first, shall be considered an election to proceed in that forum.
See Dillon v. U. S. Postal Service, EEOC Appeal No. 01981358 (December 23,
1998) (citing Milewski v. U.S.Postal Service, EEOC Request No. 05920429
(June 11, 1992)). Moreover, where an aggrieved person nevertheless
pursues his claim in both forums, the adjudication of the case on the
merits by the MSPB is deemed tantamount to an election of remedies. See
Davis v. Department of Veterans Affairs, EEOC Appeal No. 01955519
(July 31, 1996) (citing Khera v. Department of Defense, EEOC Request
No. 05920280 (April 23, 1992)). EEOC Regulation 29 C.F.R. �1614.107(a)(4)
provides, in pertinent part, that an agency shall dismiss a complaint or
portion of a complaint where the complainant has raised the same matter
in an appeal to the MSPB.
A review of the MSPB determinations in this matter reveals that
complainant claimed that the agency improperly removed him from
employment. We find that this is the same matter raised in the instant
complaint. Although complianant did not raise his claim of discrimination
in the MSPB forum, we note that he could have done so. Furthermore,
we find that the record confirms that complainant filed his MSPB
appeal prior to filing either of his EEO complaints, and that the EEO
Counselor reports reflect that the agency informed complainant about the
MSPB/EEO forum election requirement during both EEO Counseling sessions.
Notwithstanding this notice, we find that complainant is nonetheless
deemed to have elected his remedies under the MSPB process by virtue
of a full adjudication on the merits in that forum. Accordingly,
we find that the same matter raised in the instant complaint has been
adjudicated on the merits by the MSPB, and that the agency properly
dismissed the complaint.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of the instant complaint.<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
September 7, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Because we affirm the agency dismissal for the reason stated herein,
we find it unnecessary to address the agency's alternative grounds
for dismissal.