Maria T. Sandoval, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 4, 2000
01996223 (E.E.O.C. Oct. 4, 2000)

01996223

10-04-2000

Maria T. Sandoval, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Maria T. Sandoval v. United States Postal Service

01996223

October 4, 2000

.

Maria T. Sandoval,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01996223

Agency No. 4-G-770-0634-97

DECISION

Complainant filed an appeal with this Commission from an agency decision

dated July 9, 1999, dismissing her complaint 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., and the

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.<1> Complainant alleged that she was subjected to

discrimination on the bases of her race, national origin, age, and in

reprisal for protected activity when she was wrongfully terminated from

her position.

The agency's decision dismissed the complaint because it concerned an

action that had also been raised in an appeal with the Merit Systems

Protection Board (MSPB). Specifically, the agency determined that by

filing her appeal with the MSPB on July 27, 1997, she had elected to

pursue an appeal through the MSPB.

An aggrieved person may initially file a mixed case complaint<2>

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).

EEOC Regulation 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, under 29 C.F.R. � 1614.302, has elected

to pursue the non - EEO process.

In the present case, the record indicates that complainant filed an

appeal with the MSPB concerning her June 21, 1997 removal from federal

service and that her appeal of the removal was settled by the parties

in a settlement agreement dated April 6, 1998. Although the agency

has failed to provide the entire record file for review as requested

by the Commission, the record is sufficient to show that complainant

raised the same matter in her appeal to the MSPB as that raised in her

instant complaint, and that her MSPB appeal was subsequently settled.

Therefore, as complainant has elected to settle the matter of her

termination outside of the EEO process, we find that the agency properly

dismissed her complaint.

Accordingly, the agency's decision dismissing complainant's complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

October 4, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2A 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).