Ramon A. Cuffie, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 22, 2000
01986823 (E.E.O.C. Aug. 22, 2000)

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.