01a02004
04-06-2000
Gene Bono v. United States Postal Service
01A02004
April 6, 2000
Gene Bono, )
Complainant, )
)
v. ) Appeal No. 01A02004
) Agency No. 4A-105-0108-97
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(New York Metro/Northeast Area), )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107), for making a prior election to appeal to the Merit Systems
Protection Board (Board or MSPB).<1>
The record discloses that on May 1, 1997, complainant filed an appeal with
the MSPB. The appeal included a charges of discrimination. Subsequently,
on May 7, 1997, complainant filed an EEO complaint of discrimination.
On August 5, 1997, the agency dismissed the complainant's discrimination
complaint and advised him to present his allegations of discrimination to
the Board. On November 1, 1997, counsel for complainant requested that
the Board dismiss complainant's MSPB appeal based on the complainant's
desire to pursue the matter to arbitration under the grievance procedure.
On November 4, 1997, the MSPB AJ dismissed complainant's appeal stating
that it had been withdrawn. On May 4, 1998, complainant grievance was
denied. On July 23, 1999, complainant requested that his EEO complaint
be reinstated.
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). EEOC Regulation 29 C.F.R. �
1614.107(d) 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.
The complainant, who is represented by counsel, asserts that his
voluntary withdrawal of his MSPB appeal should automatically reinstate
his EEO appeal. However, where a complainant voluntarily withdraws an
otherwise actionable Board appeal, the claim is irrevocably withdrawn..
Cf. Hammond v. General Services Administration, EEOC Request No. 05940428
(August 24, 1994), Appeal No. 01934684 (January 26, 1994). Complainant
has not asserted that the agency failed to inform him of the rights and
requirements of the mixed case process; furthermore, the record shows
that the agency advised appellant of the mixed case process during EEO
counseling, i.e., before he filed his MSPB appeal. Accordingly, the
agency's final decision dismissing complainant's complaint is 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
1On 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.