Ronald P. Cohen, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 2, 2000
01995990 (E.E.O.C. Mar. 2, 2000)

01995990

03-02-2000

Ronald P. Cohen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald P. Cohen, )

Complainant, )

)

v. )

) Appeal No. 01995990

William J. Henderson, ) Agency No. 1B-065-0008-99

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On July 24, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) dismissing a portion of his complaint

on the grounds that he filed a civil action on the same matters raised

in his complaint.<1> Although direct appeals of decisions partially

dismissing a complaint are no longer permissible under the regulations

revised on November 9, 1999, the agency has informed the Commission that

the remainder of the complaint was the subject of an agency decision on

March 2, 1999. Therefore, we shall consider the instant appeal because

there are apparently no remaining claims from the instant complaint

pending anywhere in the administrative EEO process.

On January 12, 1999, complainant filed a formal complaint claiming that

he was discriminated against based on religion when:

1) On approximately October 31, 1998 he became aware that the Manager

of Distribution Operations referred to him in an ethnically offensive

manner, while engaged in a conversation with another supervisor; and,<2>

2) On January 6, 1999, he was issued a �Letter of Warning in Lieu of

Time-Off Suspension�, charging him with conduct unbecoming a supervisor

and failure to follow instructions.

In March 1999, the agency accepted claim 2 for investigation and

further processing. Thereafter, on July 20, 1999, the agency issued

a FAD dismissing claim 2 on the grounds that complainant filed a civil

action on the same matter.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred cited as 29 C.F.R. � 1614.107(a)(3)) allows for the dismissal

of a complaint that is pending in a United States District Court in

which the complainant is a party. A review of the record reveals that

complainant filed a civil action in the United States District Court for

the District of Connecticut (Civil Action No. 399CV01019 AWT) on May

27, 1999, regarding the same matter that was raised in his formal EEO

complaint. Accordingly, the agency's decision to dismiss complainant's

complaint was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 2, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2 The agency issued a FAD on March 2, 1999 dismissing claim 1 for failure

to state a claim. Complainant's appeal was dismissed by the Commission.

See Cohen v. U.S. Postal Service, EEOC Appeal No. 01993089 (August 16,

1999).