01A21455_r
03-04-2003
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