01A24186_r
04-24-2003
Richard J. Fortuna v. United States Postal Service
01A24186
April 24, 2003
.
Richard J. Fortuna,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24186
Agency No. 4B-020-0043-02
DECISION
Complainant appeals to the Commission from the agency's decision dated
July 17, 2002, dismissing his complaint of discrimination for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint
dated June 17, 2002, complainant alleged that he was subjected to
discrimination on the bases of age (over 40) and reprisal for prior EEO
activity when his former Postmaster denied his request to serve another
probationary period in an attempt to resolve his prior EEO complaint.
The record indicates that complainant had been terminated from his
probationary position, effective December 5, 2001. He thereafter filed
Complaint No. 4B-020-0017092 in connection with his firing. On March 18,
2002, during settlement negotiations on Complaint No. 4B-020-0017092,
complainant proposed that he be allowed to return to work and begin a
new probationary period. The agency did not agree to this proposal, and
consequently, settlement talks were called off. Complainant thereafter
filed the instant complaint. The record indicates that on March 19, 2002,
the agency accepted Complaint No. 4B-020-0017092 for its investigation.
Agencies are required to dismiss complaints that fail to state a claim.
29 C.F.R. � 1614.107(a)(1). In order to facilitate resolution attempts,
all parties involved in resolution must be free to explore all avenues of
relief, and consequently, offers and statements made by parties cannot be
used against either party if resolution attempts fail. EEO Management
Directive 110 (November 9, 1999) p. 2-16. Since management's refusal
to reinstate complainant occurred during a settlement negotiation,
complainant's allegation that management refused to reinstate him fails
to state a claim. Hammond v. Federal Deposit Insurance Corporation, EEOC
Appeal No. 01950988 (October 20, 1995), request for reconsideration denied
EEOC Request No. 05960124 (November 13, 1997) (interpreting identical
language in an earlier management directive). Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 24, 2003
__________________
Date