01986823
08-22-2000
Ramon A. Cuffie, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ramon A. Cuffie v. United States Postal Service
01986823
August 22, 2000
.
Ramon A. Cuffie,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986823
Agency No. HO-0184-98
DECISION
On September 16, 1998, complainant filed a timely appeal with this
Commission from an agency's decision pertaining to his 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> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding a claim of discrimination
based on age and race. Specifically, complainant claimed that on December
18, 1992, he was told by the Manager Support Services that his new job
title was Budget & Cost Analyst, Sr. and that his position level had been
reduced from EAS-23 to EAS-22. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a complaint
dated February 15, 1994.<2>
On August 14, 1998, the agency issued a decision dismissing complainant's
complaint for previously raising the matter in an appeal to the Merits
Systems Protection Board. The agency determined that complainant appealed
his individual complaint to the MSPB under MSPB No. SI0351950421,
and that the Commission thereafter reviewed the MSPB's finding of no
discrimination. The agency dismissed the complaint on the alternative
grounds that it is the basis of a pending civil action in a United States
District Court.
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. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 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). Moreover, 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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 29 C.F.R. � 1614.302 indicates
that the complainant has elected to pursue the non - EEO process.
A review of the record reveals that complainant filed an appeal with
the MSPB regarding the matter in the instant case. Moreover, the
Commission has issued a decision concurring with the MSPB's finding of
no discrimination. Cuffie v. USPS, EEOC Petition No. 03970025 (March
11, 1997). Therefore, the Commission determines that complainant elected
to pursue with the MSPB the matter raised in the instant complaint.
Because of our disposition we do not consider whether the complaint was
properly dismissed by the agency on other grounds.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 22, 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 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.
2Complainant originally filed the complaint on behalf of a class, which
was assigned Case No. HZ-0006-95. The class complaint was dismissed on
June 9, 1997, for failure to meet the elements of a class complaint.