01a02786
08-01-2000
Cathy C. Artis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cathy C. Artis, )
Complainant, )
)
v. ) Appeal No. 01A02786
) Agency No. 4-H-310-0020-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 25, 2000, complainant filed a timely appeal with this
Commission from an agency decision dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The agency
characterized her December 23, 1999 complaint as alleging that she was
subjected to discrimination on the basis of race (Black) when on September
24, 1999, her request to return to duty, as stipulated in a settlement
reached before the Merit Systems Protection Board (MSPB), was denied.<2>
Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)),
the agency dismissed complainant's complaint for failure to state a claim.
Specifically, the agency determined that complainant was challenging
management's failure to adhere to the terms of a settlement agreement
reached in the MSPB forum concerning her removal, and was therefore
using the EEO process to make a collateral attack on another forum's
proceeding.
The record indicates that in her complaint, complainant asserts that
on September 24, 1999, during a prehearing conference with the MSPB,
her request to return to work within her capabilities was denied.
The record also shows that on September 24, 1999, after a prehearing
conference call, complainant's appeal of her removal was dismissed by the
MSPB without prejudice under the provisions of a settlement agreement
allowing her to resubmit an Office of Workers' Compensation Programs
(OWCP) claim and later refile her appeal subject to the outcome of the
OWCP decision. Finally, we note that complainant's informal complaint
and the EEO Counselor's report indicate that complainant re-filed her
MSPB appeal on November 5, 1999, and that the re-filed appeal included
the same issues as her complaint.
In the present case, it appears that the agency has mischaracterized
complainant's complaint so as to assert that the agency was in violation
of a provision of a settlement agreement concerning her removal appeal
before the MSPB. Regardless of the exact assertions in the complaint,
however, the agency has failed to show that complainant was in effect
challenging the agency's failure to adhere to the terms of an MSPB
settlement agreement. Nevertheless, we note from the record that
complainant re-filed an appeal encompassing her request for accommodation
to the MSPB on November 5, 1999. An aggrieved person may initially
file a mixed case complaint<3> 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 regulations found at 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(4)), provide that an agency shall dismiss a
complaint where the complainant has raised the matter in an appeal to
the MSPB and, under 29 C.F.R. � 1614.302, has elected to pursue the non -
EEO process. Therefore, as complainant's complaint has raised the same
matter as that raised in her previous appeal to the MSPB, it is properly
dismissed under 29 C.F.R. � 1614.107(a)(4).
Accordingly, for the reasons stated herein, the agency's decision
dismissing the subject 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 1, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2On appeal, complainant asserts that she was also subjected to
discrimination on the bases of disability and in retaliation for previous
complaints.
3A 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).