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).