01990340
10-06-1999
Paul T. Shafer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paul T. Shafer v. United States Postal Service
01990340
October 6, 1999
Paul T. Shafer, )
Appellant, )
)
v. ) Appeal No. 01990340
) Agency No. 4-F-950-0114-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 16, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated September 15, 1998, pertaining
to his complaint of unlawful employment discrimination 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. In his complaint, appellant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
color (white), national origin (English/German), gender (male), religion
(Protestant), age (date of birth September 17, 1942), and in reprisal
for prior EEO activity when:
Appellant was terminated for abusing his employees but another supervisor
was not; and
Appellant's CA-2 (Office of Workers' Compensation Program [OWCP])
form, submitted December 12, 1997, was still on his supervisor's desk
on March 3, 1998.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(d), for alleging a matter decided by the Merit
Systems Protection Board (MSPB). Specifically, the agency found that
appellant filed an appeal with the MSPB regarding his dismissal on June
5, 1996, but did not file a formal EEO complaint until June 5, 1998.
The agency contends that the MSPB asserted jurisdiction over the matter,
and overturned the agency's removal action in an initial decision dated
February 20, 1997, affirmed on October 21, 1997.
On appeal, appellant argues that the agency improperly co-mingled his
EEO complaint and MSPB appeal.
The record includes a copy of appellant's formal complaint, dated June
5, 1998, and appellant's request for counseling, dated March 6, 1998,
in which appellant stated, "I appealed my removal to the . . . [MSPB]
and prevailed." The record also contains an MSPB decision, dated October
21, 1997, concerning appellant's removal.
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). If appellant attempts to raise
the same matter with both the MSPB and EEO, then appellant is deemed
to have elected to proceed through the forum in which he first files.
See id. EEOC Regulation 29 C.F.R. �1614.107(d) provides that an
agency shall dismiss a complaint or a portion of 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 indicates that appellant appealed his removal to the MSPB
prior to filing a formal EEO complaint, and that appellant admitted
his election in his request for counseling. Accordingly, the agency's
dismissal of allegation (1) is proper.
Allegation (2), however, was not brought before the MSPB. Therefore,
the agency's dismissal of allegation (2) is improper.<1>
CONCLUSION
Accordingly, the agency's dismissal of allegation (1) is AFFIRMED;
however, the agency's dismissal of allegation (2) is REVERSED, and the
allegation is REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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).
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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission notes that although a collateral attack on the OWCP process
does not state a claim, see Hovarth v. Department of the Navy, EEOC Request
No. 05960780 (Oct. 2, 1998), appellant states a cognizable claim in limited
circumstances, such as when a delay in sending information to OWCP is
alleged. See Conley v. Department of the Navy, EEOC Request No. 05970402
(Jan. 21, 1999).