0120092554
09-17-2009
Bruce D. Rodewald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruce D. Rodewald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092554
Agency No. 1E554000206
DISMISSAL
Complainant filed an appeal with this Commission from the agency's
decision dated May 26, 2009, 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 a complaint dated January 12, 2009, complainant alleged that he
was subjected to discrimination on the bases of disability, age (61),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when in November 2008 he was issued a notice of
proposed removal and subsequently received a letter of decision effecting
his removal on December 31, 2008.
The agency accepted the complaint and investigated the matter. Thereafter,
the agency issued a final decision finding it did not discriminate against
complainant. Because complainant was a preference eligible veteran,
he was given the right to appeal to the Merit Systems Protection Board
(MSPB), not the Commission. See 29 C.F.R. � 1614.302(d)(3).
Instead of appealing to the MSPB, complainant sought an EEOC hearing. It
was explained to him that he had to file with the MSPB as the matter was
under MSPB's jurisdiction. Complainant then filed the instant appeal,
continuing to assert that he desires an EEOC hearing.
The Commission finds that because this is a matter within the MSPB's
jurisdiction, complainant was properly given MSPB appeal rights. To that
extent, he is not entitled to a hearing before an EEOC Administrative
Judge. Thus, if he desires to pursue the matter further, he must file
his appeal with the MSPB, as set forth in the agency's decision.
Accordingly, complainant's appeal is dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 17, 2009
__________________
Date
2
0120092554
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092554