01991038
01-27-2000
John M. Scorcia, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John M. Scorcia v. United States Postal Service
01991038
January 27, 2000
John M. Scorcia, )
Complainant, )
)
v. ) Appeal No. 01991038
) Agency No. HO-0124-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated October 15,
1998 dismissing complainant's complaint is proper because a portion
of the complaint states the same claim that has been decided by the
Commission and because the remaining portion of the complaint fails to
state a claim.<1>
In the complaint complainant claimed that he was subjected to harassment
when:
Complainant was forced into involuntary retirement.
Complainant was terminated while his Merit Systems Protection Board
(MSPB) appeal was pending.
Complainant's health benefits were canceled while being paid by him.
Complainant was not promoted.
The agency refused to provide data on medical benefits.
The agency refused to return complainant's personal property (prune
juice).
The MSPB issued an Initial Decision on October 2, 1997 affirming the
agency's decision to remove complainant from the agency effective March
28, 1997. The MSPB found that complainant did not prove his claim of
age discrimination or reprisal. The full Board issued an Order on June
20, 1998 upholding the removal. Scorcia v. United States Postal Serv.,
EEOC Petition No. 03980115 (May 28, 1999). Complainant filed an appeal
with the Commission from the MSPB's June 20, 1998 Order. The Commission
issued a decision on May 28, 1999 concurring with the final decision of
the MSPB finding no discrimination. Scorcia, EEOC Petition No. 03980115.
The agency dismissed claims 1 and 2 of the instant complaint on the
grounds that complainant elected to pursue an appeal before the
MSPB on the same matter. The Commission finds that claims 1 and
2 are properly dismissed for stating the same claim that has been
decided by the Commission in Scorcia, EEOC Petition No. 03980115.
64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as 29
C.F.R. � 1614.107(a)(1)). Both claims 1 and 2 concern complainant's
termination. The termination claim was adjudicated in Scorcia, EEOC
Petition No. 03980115. Because of our disposition we do not address
whether claims 1 and 2 were properly dismissed on other grounds.
The agency dismissed claims 3 - 6 for failing to state a claim.
The Commission finds that claim 3 is properly dismissed for stating
the same claim as the termination claim. 29 C.F.R. � 1614.107(a)(1).
The Commission finds that the cancellation of health benefits issue is
inextricably intertwined with the termination issue. Complainant has
not shown how the purported cancellation of health benefits was separate
from the termination decision. The Commission finds that complainant
was not aggrieved in claims 4 - 6, that the claims are insufficient to
state a claim of harassment, and that the agency properly dismissed these
claims for failure to state a claim. Id. Claim 4 apparently concerns
the appointment of Person A to the position for which complainant was
terminated. Complainant is not aggrieved in such a situation as he
was no longer employed with the agency. Complainant has not shown how
he was specifically harmed in claim 5. Regarding claim 6 we note that
complainant appears to have been a former employee when he claimed that
the agency never returned his prune juice.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 27, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.