John A. Rodriguez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 4, 2003
01A21455_r (E.E.O.C. Mar. 4, 2003)

01A21455_r

03-04-2003

John A. Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John A. Rodriguez v. United States Postal Service

01A21455

March 4, 2003

.

John A. Rodriguez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A21455

Agency Nos. 1-H-336-0113-00

1-H-336-0114-00

1-H-336-0115-00

1-H-336-0116-00

DECISION

Complainant filed a timely appeal with this Commission from four

final agency decisions dismissing his complaints 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.; the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq.

Agency No. 1-H-336-0113-00

Complainant alleged that the agency subjected him to discrimination on

the bases of race, age, and disability when on May 13, 2000, he was made

aware of a discriminatory remark made by an agency official regarding

his removal.

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint which fails to

comply with the applicable time limits contained in 29 C.F.R. � 1614.106,

which, in turn, requires the filing of a formal complaint within fifteen

(15) days of receiving notice of the right to do so.

The Commission determines that the agency properly dismissed this

complaint. The record reveals that on September 1, 2001, complainant

received a notice of his right to file a formal complaint, which indicated

that he had fifteen days from receipt of the notice in which to timely

file a formal complaint.. The record further reveals that complainant

filed this formal complaint on September 30 , 2001, which is beyond the

fifteen-day time limit. Consequently, we find that complainant filed

an untimely complaint for Agency No. 1-H-336-0113-00.

Agency No. 1-H-336-0114-00

Complainant alleged that the agency subjected him to discrimination

on the bases of race, age, and disability when on January 19, 2000,

the agency issued him a notice of proposed removal.

In a final agency dated December 10, 2001, the agency dismissed

complainant's complaint as untimely filed. The agency alternatively

dismissed complainant's complaint as stating the same claim as a prior

EEO complaint.

Upon review, the Commission determines that the agency properly dismissed

this complaint. The record reveals that on September 1, 2001, complainant

received notice of his right to file a formal complaint as well as

the fifteen-day time limit for doing so. The record further reveals

that complainant filed this formal complaint on September 30 , 2001,

which is beyond the fifteen-day time limit. Consequently, we find that

complainant filed an untimely complaint for Agency No. 1-H-336-0114-00.

Because we determine that the agency properly dismissed the instant

complaint for the reason stated herein, we find it unnecessary to address

the agency's alternative dismissal grounds.

Agency Nos. 1-H-336-0115-00 and 1-H-336-0116-00

In Agency No. 1-H-336-0115-00, complainant alleged that the agency

subjected him to discrimination on the bases of age, disability, age,

and race when a former employee told complainant that an agency official

terminated complainant effective March 10, 2000, because he was �out to

get him� and thought complainant was irresponsible for taking medication

that affected his work performance.

In Agency No. 1-H-336-0116-00, complainant alleges that the agency

subjected him to discrimination on the bases of race, age, disability,

and reprisal for previous EEO activity when on January 15, 2000, an

agency official stated to complainant that the real reason the agency

wanted to terminate complainant was because of his use of the Family

Medical Leave Act. Complainant further alleged in this complaint that

he was terminated because an agency manager �was out to get him.�

In a final decision dated July 27, 2001, the agency dismissed Agency

No. 1-H-336-0115-00 for raising the same matter as complainant's Merit

System Protection Board (MSPB) appeal. In a final decision dated July 27,

2001, the agency dismissed Agency No. 1-H-336-0116-00 on the grounds of

untimely EEO Counselor contact.

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). 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 the complainant has elected to pursue the non - EEO process

The record reveals that on April 1, 2000, complainant appealed his

March 10, 2000 removal from the agency to the Merit Systems Protection

Board (MSPB). The record further reveals that on June 13, 2000, the

MSPB dismissed complainant's appeal after the parties entered into an

MSPB settlement agreement dated June 9, 2000. In the MSPB settlement

agreement, the agency agreed to reinstate complainant's employment.

The MSPB retained jurisdiction over enforcement of the MSPB agreement.

Upon review, we note that complainant's MSPB appeal challenges his removal

from the agency effective March 10, 2000. Both of complainant's instant

complaints concern alleged statements made by agency officials regarding

the motives for complainant's March 10, 2000 removal. Although the agency

dismissed Agency No. 1-H-336-0116-00 for untimely Counselor contact, we

determine that the matters in both complaints are inextricably intertwined

with the subject matter of his MSPB claim. Consequently, we find that

complainant elected to pursue the same matters alleged in both Agency

Nos. 1-H-336-0115-00 and 1-H-336-0116-00 through the MSPB process.

Accordingly, the Commission AFFIRMS the agency's dismissals of

Agency Nos. 1-H-336-0113-00, 1-H-336-0114-00, 1-H-336-0115-00, and

1-H-336-0116-00 for the reasons set forth in this decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__March 4, 2003________________

Date