01a02574
08-09-2000
Todd E. Meldrum, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Todd E. Meldrum v. United States Postal Service
01A02574
August 9, 2000
Todd E. Meldrum, )
Complainant, )
)
v. ) Appeal No. 01A02574
) Agency No. 4-C-442-0127-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 7, 2000, complainant filed a timely appeal with this
Commission from an agency decision pertaining to his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of physical and mental disability when, in violation of
the Privacy Act and subsequent to discovering an illegal file containing
medical documents:
He was issued a Notice of Proposed Removal for unsatisfactory attendance
on January 7, 1998; and
By letter dated February 2, 1998, he was issued a Letter of Decision
removing him effective February 14, 1998.
Pursuant to EEOC Regulations, the agency dismissed complainant's
complaint as stating the same claims as that filed in a civil action,
and, alternatively, because it raised the same matter as that raised in
an appeal with the Merit Systems Protection Board (MSPB). Specifically,
the agency determined that complainant filed a related civil action
(Case No 5:97CV1482) in the U.S. District Court, Northern District of
Ohio, Eastern Division, and that complainant filed an appeal on the same
matter with the MSPB on February 23, 1998.
On appeal, complainant asserts that his discrimination claims were not
alleged or heard in his MSPB appeal because he was not procedurally
advised to raise them, and that �he had no reason to believe that
discrimination issues were to be heard anywhere else but from his EEO
complaint.�
The record indicates that complainant appealed his removal with the MSPB
on February 23, 1998, and filed the present formal complaint on April
3, 1998. After the MSPB twice dismissed complainant's appeal without
prejudice and another re-filed appeal as premature (relative to his
District Court filing), the MSPB affirmed the agency's action on April
29, 1999. Subsequent to MSPB's initial decision, complainant filed a
Petition for Review on June 2, 1999. We note that the EEO Counselor's
report indicates that the Counselor �informed [complainant] of the mixed
case election procedures in 29 C.F.R. � 1614.302(b).�
An aggrieved person may initially file a mixed case complaint<2>
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).
Volume 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, under 29 C.F.R. � 1614.302, has elected to pursue the non -
EEO process.
In the present case, complainant elected to file an appeal with the MSPB
concerning his removal prior to filing his present EEO complaint, and
therefore elected to pursue his removal through the non - EEO process.
Moreover, although complainant asserts that he was unaware that he should
raise his discrimination claims before the MSPB, the record shows that the
EEO Counselor advised him of the nature of mixed case election procedures,
and that complainant chose not to raise his discrimination claims in
his MSPB appeal. Therefore, the agency properly dismissed complainant's
complainant for alleging matters previously raised in an MSPB appeal.<3>
Accordingly, the agency's decision dismissing complainant's complaint
is 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:
August 9, 2000
____________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
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.
2A 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. 29 C.F.R. � 1614.302(a)(1).
3As we have affirmed the agency's dismissal under 29 C.F.R. �
1614.107(a)(4), we do not address the agency's alternative reason for
dismissal.