0120122752
12-18-2012
Guillermo Mojarro, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Guillermo Mojarro,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120122752
Agency No. 4F-926-0109-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 4, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency. Complainant has filed numerous EEO complaints against the Agency, which culminated in a global settlement agreement with the Agency on April 14, 2011. In that settlement agreement, the Agency agreed to pay Complainant $250,000 in return for which Complainant agreed to settle all his pending cases and to "never return to work for the [Agency]" in any way again. Subsequent appeals filed with this Commission have addressed Complainant's contentions regarding the settlement agreement and other issues connected to Complainant's employment with the Agency. See Mojarro v. U.S. Postal Service, EEOC Appeal No. 0720110024, 0120113229 (Nov. 15, 2011); EEOC Request No. 0520120182 (Nov. 29, 2012); EEOC Request No. 0520120253 (Nov. 29, 2012); Mojarro v. Office of Personnel Management, EEOC Request No. 0320120020 (May 30, 2012).
On April 11, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (mental), age (54), and in reprisal for prior protected EEO activity arising under Title VII, the ADEA, and the Rehabilitation Act when:
1. on or around February 17, 2012, he was harassed by the Agency when it attempted to collect a debt;
2. the Agency refused to correct his time-in-service; and
3. as of March 1, 2012, the Agency denied his right to re-employment in the federal workforce.
The Agency dismissed the complaint on the basis that Complainant had already raised these matters in an appeal to the Merit Systems Protection Board (MSPB), citing 29 C.F.R. � 1614.107(a)(4). The Agency noted in particular that the MSPB had already addressed the matters of the debt and Complainant's time-in-service. It also dismissed the complaint citing 29 C.F.R. � 1614.107(a)(1), finding that Complainant's claims stated the same claims which had been raised in previously filed complaints which were either pending before or had been decided by the Agency or the Commission, including the validity of eth settlement agreement which precluded Complainant's return to work for the Agency.
CONTENTIONS ON APPEAL
In his statement on appeal, Complainant argued that the issues in the instant complaint are not identical to those cited by the Agency. The Agency submitted a statement in opposition to Complainant's appeal in which it urged the Commission to affirm its dismissal.
ANALYSIS AND FINDINGS
A mixed-case complaint is a complaint of 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 elect to 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). 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 a complainant has elected to purse the non-EEO process. Moreover, 29 C.F.R. � 1614.302 provides that whichever is filed first shall be considered an election to proceed in that forum. Further, EEOC Regulation 29 C.F.R � 1614.107 (a) (1) provides for the dismissal of a complaint which states the same claim that is pending before or has been decided by the agency or Commission.
After a review of the record, and previously issued decisions pertaining to Complainant's EEO complaints against the Agency, we find that the Agency appropriately dismissed the complaint at bar on the stated grounds that the matters complained of had either been the subject of an appeal previously filed with the MSPB, or were identical to matters which had been resolved by the settlement agreement. Complainant may not, by filing a new complaint, attempt to revive matters which have already been addressed by the Agency, the Commission, and/or the MSPB.
CONCLUSION
Therefore, the Agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2012
Date
2
0120122752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122752