Frances L. Spriesterbach, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
01a00346 (E.E.O.C. Apr. 6, 2000)

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.