01981810
03-16-2000
Winfred C. Yerger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Winfred C. Yerger v. United States Postal Service
01981810
March 16, 2000
Winfred C. Yerger, )
Complainant, )
)
v. ) Appeal No. 01981810
) Agency No. 4-G-752-0229-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's November 26, 1997 decision
dismissing complainant's complaint, is proper pursuant to EEOC
Regulations.<1>
The record shows that after the agency removed complainant from the
position of Window Service Technician, PS-6, he filed an appeal before
the Merit Systems Protection Board (MSPB). On January 31, 1997, the
MSPB issued an initial decision that mitigated complainant's removal to
a 90-day suspension.
The record also shows that in February 1997, complainant sought EEO
counseling, alleging that he had been discriminated against on the basis
of reprisal when, on February 25, 1997, his bid position was posted for
bid, prior to the exhaustion of his MSPB appeal rights. As corrective
action, complainant requested inter alia compensatory damages. The EEO
Request for Counseling form, PS From 2564-A, reflects that compalinant
stated that "now that I have prevailed in the MSPB appeal, the Postal
Service refused to allow my return to work because another person is in
the bid."
On November 17, 1997, the MSPB dismissed the agency's petition for review
and ordered the agency to cancel complainant's removal, to reinstate
him effective June 30, 1995, and to issue a 90-day suspension in lieu
of the removal.
On November 25, 1997, the agency issued a final decision dismissing the
complaint on the grounds of mootness. On appeal, complainant contends
that his EEO complaint is an effort to "seek vindication of his rights
in connection with discrimination by the agency during the period of
interim relief". Complainant further states that "given the fact that
only the EEOC may adjudicate [his] claim for compensatory damages,
he should be allowed to present evidence" concerning said issue.
The record reflects that, on January 21, 1998, complainant filed a
Motion for Enforcement with the MSPB, in an effort to resolve MSPB
compliance issues.
A review of complainant's complaint shows that he claims that while
the agency's petition for review to the MSPB was pending, the agency
posted his bid position in an attempt to keep him away from his job if he
prevailed on the MSPB appeal. The record further shows that complainant
wants to be compensated for the damages he allegedly suffered while the
MSPB appeal was pending. Finally, his complaint shows that he has come
before the EEOC to claim damages that "only the EEOC can provide".
While the agency dismissed complainant's complaint on the grounds of
mootness, the Commission determines that this case is properly analyzed
in terms of whether it addresses the same matter that was raised in
an appeal to the MSPB, pursuant to 64 Fed. Reg. 37,644, 37656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107(a)(4)). We find it proper to dismiss complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(4), because the matter
raised in the instant complaint is inextricably intertwined with an
issue that was raised before the MSPB. Accordingly, the dismissal of
the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 16, 2000
___________ ______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATION 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.