01a00346
04-06-2000
Frances L. Spriesterbach, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frances L. Spriesterbach, )
Complainant, )
)
v. ) Appeal No. 01A00346
) Agency No. 4F-926-0128-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 14, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 23,
1999, pertaining to 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., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal from
the agency's final decision in the above-entitled matter.
The record reflects that on April 30, 1998, complainant filed a formal
complaint claiming that she was discriminated against on the bases of
her age (forty and over), gender (female), disability (physical) and
reprisal (prior EEO activity) when, on January 23, 1998, she was sent
home and informed that she was not physically fit to work. Thereafter,
on August 24, 1998, complainant filed an appeal to the Merit Systems
Protection Board (�MSPB�) challenging the agency's decision of January
23, 1998, finding complainant unfit to work and sending her home because
such an action is considered constructive discharge.
In a bench decision, dated December 14, 1998, the MSPB reversed the
agency's action of finding complainant unfit for work and sending her
home for an extended period. Subsequently, the agency on September 23,
1999, issued a final decision dismissing the present complaint on the
grounds that it raised issues that had been appealed to the MSPB.
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). 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.
In the present case, complainant on April 30, 1998, initially filed
an EEO complaint claiming that she was discriminated against when the
agency found her unfit for duty and sent her home for an extended period.
Thereafter, on August 24, 1998, complainant filed an appeal to the
MSPB with regards to her being found unfit for duty and being sent home.
In reaching a decision, the MSPB examined the circumstances surrounding
the agency's actions including sending the complainant home and finding
her unfit for duty.
The Commission finds that the issue raised before the MSPB, complainant's
constructive discharge, is inextricably intertwined with the claim raised
in complainant's complaint. See Hopkins v. United States Postal Service,
EEOC Request No. 01961059 (February 5, 1997). Moreover, although the
EEO complaint was filed first and should have taken precedence over the
MSPB appeal, pursuant to 29 C.F.R. 405 (b), the MSPB has nonetheless
considered the underlying factual issues that are relevant to the
complaint. The adjudication of the case by the MSPB is tantamount
to an election of remedies. See Aho v. Department of Agriculture,
EEOC Request No. 05860085 (May 22, 1985). In Aho, we stated that �the
Commission believes that upholding the unequivocal legislative interest
to provide only one forum in which to challenge the propriety of an agency
action alleged to have been based, in whole or in part, on discriminatory
factors, takes precedence over (complainant's) equitable entitlement to
have an adjudication of that issue in one forum or the other. Further,
�the Commission is mindful of the rational of the doctrine of re judicata,
which estops a party from establishing jurisdiction in a second forum
when the involved issues have been decided, or could have been raised
and adjudicated in previous litigation prompted by the same controversy
between the same parties. See Id. Citing Stevenson v. International
Paper Co., 516 F.2d 103 (5th Cir. 1975).
For the reasons set forth herein, the Commission hereby finds that the
agency's decision dismissing the present case was proper and is therefore
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).
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 6, 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.