01983595
05-07-1999
John A. Crawford, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Crawford v. United States Postal Service
01983595
May 7, 1999
John A. Crawford, )
Appellant, )
)
v. ) Appeal No. 01983595
) Agency No. HI-0202-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's February 12, 1998 decision
dismissing two of appellant's complaints was proper pursuant to EEOC
Regulations 29 C.F.R. 1614.107(d).
The record shows that on July 17, 1996, appellant filed a formal complaint
of discrimination alleging that he had been discriminated against on
the bases of age (DOB 4/18/47), mental disability (stress, anxiety and
depression) and reprisal for prior EEO activity when on June 10, 1996,
he was placed on enforced leave.
On December 11, 1996, appellant filed a second complaint alleging that
he had been discriminated against on the bases of age (DOB 4/18/47),
mental disability (stress, anxiety and depression) and reprisal for prior
EEO activity when on November 15, 1996, the agency failed to act on his
request for reasonable accommodation.
On October 29, 1996, appellant filed an appeal with the Merit Systems
Protection Board (MSPB) alleging that the agency had placed him on
enforced leave "due to alleged unfitness for duty". On November 19,
1997, the MSPB issued an initial decision and ordered the agency to
"retroactively restore appellant effective August 3, 1996". A review
of the MSPB decision shows that the time frame taken into account was
from September 1994, through July 31, 1996.
The agency issued a final decision dismissing appellant's complaints on
the grounds that the allegations had been raised and addressed in the
MSPB appeal. The agency found that the reasonable accommodation issue
was "inextricably connected with the enforced leave issue". On appeal,
appellant's attorney claims that the issue of discrimination was not
addressed by the MSPB. Appellant's attorney also contends that "the
MSPB did not address, at all, the claim of the second complaint, which
sought redress for failure to accommodate [appellant] during his enforced
leave".
On appeal, the agency states that the complaint filed by appellant on
December 11, 1996, should also be dismissed on the basis of mootness
because the reasonable accommodation issue was resolved by the MSPB
decision.
EEOC Regulation 29 C.F.R.�1614.302(b) provides that "an aggrieved person
may initially file a mixed case complaint<1> with an agency pursuant to
this part or an appeal on the same matter with the MSPB<2> pursuant to
5 C.F.R.�1201.151, but not both". This section further provides that
"whichever is filed first shall be considered an election to proceed in
that forum". Finally EEOC Regulation 29 C.F.R.�1614.107(d) provides
that an agency shall dismiss a complaint or portion of a complaint
where the complainant has raised the matter in "an appeal to the Merit
Systems Protection Board and �1614.301 or �1614.302 indicates that the
complainant has elected to pursue the non-EEO process".
The record shows that appellant filed a formal complaint of discrimination
concerning the enforced leave issue on July 17, 1996. Three months later,
on October 29, 1996, he filed an appeal to the MSPB regarding the same
issue. An initial decision was issued by the MSPB on November 19, 1997.
In its decision the MSPB ordered the agency to "retroactively restore
appellant effective August 3, 1996". Based on the foregoing, we find that
although appellant initially filed a formal EEO complaint in July 1996,
and his appeal with the MSPB in October 1996, because an MSPB decision
was issued in November 1997, appellant elected to proceed in that forum.
His arguments on appeal are a collateral attack on the MSPB decision
and, as such, are not proper. See Cox v. USPS, EEOC Appeal No. 01943638
(March 31, 1995). Accordingly, we find that the final agency decision
dismissing the complaint filed on July 17, 1996, was proper and it is
hereby AFFIRMED.
Appellant's second complaint was filed on December 11, 1996. In said
complaint, appellant alleged that he had been discriminated against
on November 15, 1996, by the agency's failure to act on his reasonable
accommodation request. The agency dismissed this complaint on the grounds
that said issue had been "inextricably connected" to the enforced leave
issue addressed by the MSPB.
A review of the MSPB appeal and decision shows that all incidents
considered by the MSPB occurred between September 1994, and July 31, 1996.
However, the complaint in question raises the agency's failure to act on
a reasonable accommodation request on November 15, 1996. Nevertheless,
appellant's contentions on appeal show that through his EEO complaint
he wants to address the agency's failure to accommodate him during the
period of his enforced leave.
Under these circumstances, we find that appellant elected to proceed
in the MSPB forum. His second complaint is another collateral attack
on the MSPB decision. Based on the foregoing, we find that the agency
properly dismissed the complaint filed on December 11, 1996. Accordingly,
the final agency decision 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. �l6l4.604(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 consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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:
May 7, 1999
DATE Ronnie Blumenthal, Director
1 A mixed case complaint is a complaint of employment discrimination
filed with a federal agency based on race, color, religion, sex, national
origin, age or disability related to or stemming from an action that
can be appealed to the MSPB.
2 A mixed case appeal is an appeal filed with the MSPB that alleges
that an appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race, color, religion, sex,
national origin, age or disability.