Ricky R. Lewis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01991650 (E.E.O.C. Sep. 3, 1999)

01991650

09-03-1999

Ricky R. Lewis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ricky R. Lewis, )

Appellant, )

)

v. ) Appeal No. 01991650

) Agency No. 1C-441-0151-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DISMISSAL OF APPEAL

On December 18, 1998, appellant filed a timely appeal with the Commission

from a final decision of the agency concerning 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 �501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.

A review of the record reveals that appellant's complaint regarding

his removal was accepted and investigated by the agency pursuant to 29

C.F.R. �1614.106 et seq. By final decision dated November 17, 1998,

the agency entered a finding of no discrimination and gave him rights

to appeal under 29 C.F.R. �1614.302(a), to the Merit Systems Protection

Board (MSPB). Pursuant to 29 C.F.R. �1614.302(d)(3), an appellant with

a mixed-case complaint has no right of appeal to the Commission at this

time.<1> Appellant should direct his appeal to the MSPB.<2> Accordingly,

this appeal is DISMISSED.

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 (S0993)

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. 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:

September 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 However, once appellant receives

a final decision from the MSPB, appellant may file a petition,

in writing, with the Commission to consider issues of prohibited

discrimination that the MSPB considered in reaching its decision.

2 It is noted that the Civil Service Reform Act at 5 U.S.C. �7702(f)

provides that, in any case in which an employee is required to file any

action, appeal, or petition and the employee timely files the action,

appeal, or petition with an agency other than the agency with which

the action, appeal, or petition is to be filed, the employee shall be

treated as having timely filed the action, appeal, or petition as of

the date it is file with the proper agency.