01991518
01-19-2000
Francisco H. Guzman, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Francisco H. Guzman, )
Complainant, )
)
v. ) Appeal No. 01991518
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
The record indicates that on March 31, 1975, complainant, a Criminal
Investigator, GS-12, was issued a notice of proposal to remove him from
employment within the agency. The record indicates that complainant filed
a formal complaint dated July 24, 1975, alleging discrimination based on
national origin (Dominican) when he was removed from employment on July
17, 1975. On March 17, 1976, the agency completed the investigation of
the complaint.
The record indicates that complainant previously filed an appeal with the
Federal Employee Appeals Authority (FEAA), the predecessor organization to
the Merit Systems Protection Board (MSPB) seeking reversal of the removal.
The FEAA, in FEAA Decision No. AT752B60379 (July 30, 1976), found that
the agency properly removed complainant and that action was not based
on discrimination or reprisal. Complainant, thereafter, petitioned the
MSPB to review the FEAA decision and it was dismissed on October 9, 1991.
By letters dated July 6, 1998 and October 9, 1998, complainant alleged
that he was discriminated against when he was removed from employment
in 1975.
In its letter dated December 7, 1998, the agency stated that complainant's
alleged removal occurred in 1975, but he failed to timely contact an
EEO Counselor.
Complainant appealed. In response, the agency, acknowledging
complainant's filing of his formal complaint in 1975, concerning the
removal, argues that complainant, previously, elected to pursue the
matter through an MSPB appeal process prior to filing that complaint.
Initially, we note that although the agency dismissed the complaint due
to untimely EEO Counselor contact, it is more properly dismissed for
raising the same matter with the MSPB; thus, the matter will be reviewed
accordingly.<1>
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(d)) provides, in part, that the
agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the Merit Systems Protection Board and � 1614.302
indicates that the complainant has elected to pursue the non-EEO process.
After a review of the record, it appears that complainant previously filed
an appeal with the FEAA/MSPB concerning the allegedly discriminatory
removal before he filed the complaint on July 24, 1975. The record
indicates that the FEAA/MSPB appeal found that the removal was not based
on discrimination. Accordingly, the agency's final decision is hereby
AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
January 19, 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.