Cathy C. Artis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 1, 2000
01a02786 (E.E.O.C. Aug. 1, 2000)

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).