01993331
04-04-2000
Ernest Rodriguez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ernest Rodriguez, )
Complainant, )
)
v. ) Appeal No. 01993331
) Agency No. 4-G-770-1343-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his 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 final agency decision was issued on March
11, 1999. The appeal was postmarked March 17, 1999. Accordingly, the
appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.402(a)), and is accepted in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. �1614.405).
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed the complaint
on the grounds that the matter at issue was resolved a settlement of
complainant's Merit Systems Protection Board appeal.
BACKGROUND
Complainant initiated contact with an EEO Counselor on May 1, 1996.
On June 17, 1996, complainant filed a formal EEO complaint wherein he
claimed that he was discriminated against on the bases of his race
(Caucasian), color (white), national origin (Hispanic), and sex (male)
when on April 10, 1996, he was denied a merit increase for Fiscal Year
1995.
In its initial final decision, the agency dismissed the complaint
on the grounds of mootness. Thereafter, complainant filed an appeal
with the Commission. In the previous decision, Ernest Rodriguez
v. United States Postal Service, EEOC Appeal No. 01976164 (June 10,
1998), the Commission reversed the agency's determination that the
complaint was moot and remanded the complaint for further processing.
The Commission noted that the agency failed to address complainant's
claim for compensatory damages. Pursuant to that decision, the agency
issued a letter of acceptance accepting for investigation the denial of
complainant's merit pay increase for Fiscal Year 1995.
In the final decision currently under review, the agency rescinded its
acceptance letter and dismissed the complaint. The agency determined that
the denial of complainant's merit increase was an issue resolved in the
settlement of complainant's Merit Systems Protection Board (MSPB) appeal.
The agency noted that this settlement, entered into on September 25,
1996, stated that complainant would not be entitled to a merit increase
for Fiscal Year 1995. Thereafter, complainant filed an appeal with
the Commission.
ANALYSIS AND FINDINGS
A 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). An aggrieved person may
initially file a mixed case complaint 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). Volume 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(4)) provides that an agency shall dismiss a complaint where
the complainant has raised the matter in an appeal to the MSPB and 29
C.F.R. � 1614.302 indicates that the complainant has elected to pursue
the non - EEO process.
While it is not clear whether complainant filed the instant EEO complaint
prior to filing his MSPB appeal, he has pursued the MSPB appeal through to
resolution, i.e., a settlement agreement. The settlement of MSPB Appeal
No. DA-0752-96-0580-I-1 provided in relevant part that complainant shall
not be entitled to any merit increase for Fiscal Year 1995. It would
be inappropriate to now allow complainant to pursue his mixed case
complaint on the same issue that was resolved through the MSPB settlement.
Consequently, we hereby AFFIRM the final agency decision dismissing the
complaint for the reasons stated herein.
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:
April 4, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE 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 Assistant1On 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.