01975674
09-23-1999
John A. Sink, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Sink, )
Appellant, )
)
v. ) Appeal No. 01975674
) Agency No. 60014593
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (White), sex (male), and age (46),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. Appellant alleges
he was discriminated against when: (1) he was not placed in an EAS-23
Senior Architect position in the new Major Facilities Organization in
Memphis, Tennessee, during the agency's 1992-1993 reorganization; and
(2) the agency failed to use the reduction-in-force (RIF) guidelines
for filling positions during the reorganization. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is MODIFIED as set forth below.
The record reveals that appellant filed the instant EEO complaint on March
3, 1993, and then filed an appeal with the Merit System Protection Board
(MSPB) on March 21, 1993. Although it is not raised as a contention
by appellant, we note that the EEO Counselor may not have informed him
about the election requirement regarding these forums.<1> However,
there is no evidence to suggest that the Counselor deliberately failed
to do so as a means of disadvantaging appellant. 29 C.F.R. �1614.302(b)
The MSPB rendered an Initial Decision in appellant's favor on September
21, 1993, followed by an Opinion And Order on December 19, 1994, ratifying
the Initial Decision and ordering the agency to place appellant in an
EAS-23 Senior Architect position in the new Major Facilities Organization
in Memphis, Tennessee. Appellant declined the position.
The FAD found no discrimination in this matter, noting that the agency's
failure to use RIF procedures in the reorganization was an error which
was not motivated by discriminatory motives. The FAD further found
that appellant was not placed in the position he desired because the
selectees were comparatively far better qualified than appellant.
No new contentions are raised by either party on appeal.
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
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). The employee must be informed that
he may not file both a complaint and an MSPB appeal, and that whichever
is filed first, shall be considered an election to proceed in that forum.
See Dillon v. U. S. Postal Service, EEOC Appeal No. 01981358 (December 23,
1998) (citing Milewski v. U.S.Postal Service, EEOC Request No. 05920429
(June 11, 1992)). The Commission has held that where an agency failed
its duty to inform, the appellant could not be deemed to have made a
valid and informed election to proceed in the MSPB forum. See Dillon,
supra. (citing Zuniga v. U.S.Postal Service, EEOC Request No. 05920857
(April 26, 1993)). However, it is also well established that where
an aggrieved person nevertheless pursues his claim in both forums,
the adjudication of the case on the merits by the MSPB is tantamount
to an election of remedies. See Davis v. Department of Veterans'
Affairs, EEOC Appeal No. 01955519 (July 31, 1996) (citing Khera
v. Department of Defense, EEOC Request No. 05920280 (April 23, 1992)).
29 C.F.R. �1614.107(d) provides, in pertinent part, that an agency shall
dismiss a complaint or portion of a complaint where the complainant has
raised the same matter in an appeal to the MSPB.
A review of the MSPB determinations in this matter reveals that appellant
alleged that the agency acted improperly in filling positions during the
1992-1993 reorganization, and that personnel rules were violated when he
was not placed in an EAS-23 Senior Architect position in the new Major
Facilities Organization in Memphis, Tennessee. We find that this is the
same matter which appellant is alleging in the instant complaint. We also
find that although appellant did not raise his claim of discrimination
in the MSPB forum, he could have done so, and there is no evidence or
claim by appellant that he was misled or misinformed in this regard.
29 C.F.R. 1614.�302(a)(2). Furthermore, notwithstanding the fact that
appellant filed his EEO complaint prior to filing his MSPB appeal,
and may not have been fully informed about the election requirement,
we nevertheless find that appellant is �deemed� to have elected his
remedies under the MSPB process by virtue of a full adjudication on the
merits in that forum. See Davis, supra.
Accordingly, we find that the same matter raised in the instant complaint
has been adjudicated on the merits by the MSPB, and that the complaint
may be properly dismissed by the agency. Therefore, we MODIFY the FAD
to dismiss appellant's complaint pursuant to 29 C.F.R. �1614.107(d),
consistent with the findings set forth in this determination.
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.
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.F.R.).
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:
September 23, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 According to the EEO Counselor's Checklist in the Counselor's
Report, MSPB election was not discussed with appellant. However,
given that appellant was provided with a copy of the checklist with the
Counselor's Report, which mentions the election requirement and cites
to the applicable regulation, we find that appellant had at least this
much notice regarding the election requirement.