01992662
03-05-1999
Ismael Rivera-Silva, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ismael Rivera-Silva v. United States Postal Service
01992662
March 5, 1999
Ismael Rivera-Silva, )
Appellant, )
)
v. ) Appeal No. 01992662
) Agency No. 4A-006-0049-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his 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 final agency decision was
dated February 10, 1998. The appeal was postmarked February 24, 1998.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed allegation
(1) for raising a matter previously appealed to the Merit Systems
Protection Board (MSPB) and allegation (2) for raising a proposed action.
BACKGROUND
The record indicates that on April 14, 1997, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to resolve
appellant's concerns were unsuccessful. On May 5, 1997, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination in retaliation for prior EEO activities when:
1) in April 1997, appellant received a 21-day suspension; and
2) on April 4, 1997, appellant was issued a Notice of Proposed Removal.
On February 10, 1998, the agency issued a final decision dismissing
allegation (1) for raising a matter previously appealed to the MSPB.
The agency noted that on April 3, 1997, appellant filed an appeal with
the MSPB regarding the subject 21-day suspension. Accordingly, the
agency dismissed allegation (1) pursuant to 29 C.F.R. �1614.107(d).
The agency also dismissed allegation (2) as raising a proposed action
pursuant to 29 C.F.R. �1614.107(e).
The record indicates that on December 8, 1997, the MSPB (Merit Systems
Protection Board)issued a decision on the subject 21-day suspension.
Furthermore, it appears from the record that appellant's removal became
effective on May 21, 1997, and that appellant filed an appeal with the
MSPB regarding that removal action.<1>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(d) provides for the dismissal of
a complaint, or portion thereof which raises the same matter as that
contained in an appeal to the MSPB. A review of the record shows
that allegation (1) concerns the same issue, i.e., appellant's 21-day
suspension received on April 4, 1997, as was raised with and adjudicated
by the MSPB. Therefore, the Commission finds that the agency's dismissal
of allegation (1) was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges
that a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory. Here, the appellant
states that he received a Notice of Proposed Removal on April 4, 1997.
his notice is a preliminary step to a removal action. Therefore, the
Commission finds that the agency's dismissal of allegation (2) was also
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Mar 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1It appears from the record that in a decision dated July 31, 1997,
the agency dismissed appellant's allegation regarding his removal due
to his appeal filed with the MSPB. See Agency No. 4A-006-0056-97.
Appellant did not file an appeal from that dismissal.