01a45358
12-22-2004
Erick Diaz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast area) Agency.
Erick Diaz v. United States Postal Service
01A45358
December 22, 2004
.
Erick Diaz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast area)
Agency.
Appeal No. 01A45358
EEOC No. 150-2004-0276X
Agency No. 4-H-330-0087-03
DECISION
On August 15, 2003, complainant timely re-filed an appeal with the
Merit System Protection Board (MSPB) in which he alleged that he was
wrongfully removed from the agency and further alleged that the removal
was in retaliation for previously filing claims with the MSPB against
the agency. See MSPB Appeal, at 3. Following the MSPB hearing (during
which complainant was represented by counsel), the MSPB Administrative
Judge (AJ) issued an initial decision in favor of the agency. See MSPB
Initial Decision, No. AT-0752-02-0754-I-3 (Dec. 10, 2003). However,
in the MSPB AJ's decision, no matter subject to EEOC jurisdiction was
raised.
After receiving the MSPB AJ's Initial Decision, complainant requested
a hearing before an EEOC AJ at the Commission's Miami District Office.
The AJ dismissed complainant's request for an EEO hearing because
complainant had filed an appeal with the MSPB. It is unclear why
the agency took final action on the dismissal, but it is the agency's
final action that has given rise to the instant appeal, over which the
Commission has no jurisdiction.
Complainant is advised that the MSPB AJ properly set forth complainant's
appeal rights in her December 10, 2003 decision. See MSPB Initial
Decision, at 13. Accordingly, the Commission denies complainant's
appeal.
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:
December 22, 2004
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations