Tyrone Z. Hicks, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 13, 2000
01992930 (E.E.O.C. Jan. 13, 2000)

01992930

01-13-2000

Tyrone Z. Hicks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Tyrone Z. Hicks, )

Complainant, )

)

v. )

) Appeal No. 01992930

William J. Henderson, ) Agency No. 1-J-612-0024-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On February 25, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated February 4, 1999,

dismissing his complaint on the grounds that it raised matters that had

been appealed to the Merit Systems Protection Board (MSPB).<1> The

Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

The record reveals that on July 31, 1998, complainant filed a formal

complaint, claiming that he was subjected to unlawful employment

discrimination based on race (black). Specifically, complainant alleged

that on March 26, 1998 he was given a letter stating that if he incurred

one more unscheduled absence he would be removed.

The record reflects that on August 12, 1998, complainant filed an appeal

with the MSPB challenging the agency's decision to remove him for breach

of a �Last Chance Agreement.� In the Last Chance Agreement, complainant

agreed to �maintain a regular attendance record� and understood that

failure to comply could result in his removal. The agency cited five

separate absences as grounds for complainant's removal, include sixteen

hours of AWOL on March 24 - 25, 1998. In an Bench Initial Decision,

dated November 20, 1998, the MSPB affirmed the agency's decision to

remove complainant.

On February 4, 1999, the agency issued a FAD dismissing the complaint on

the grounds that it raised matters that had been appealed to the MSPB.

On appeal, complainant restates his allegations of discrimination.

EEOC Regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved person

may initially file a mixed case complaint with the agency or an appeal

on the same matter with the MSPB, but not both. This section further

provides that if an individual files both a mixed case complaint and an

appeal on the same matter, whichever is filed first shall be considered

an election to proceed in that forum. 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, in part, that an agency may dismiss a complaint where the

complainant has raised the same matter in an appeal to the MSPB.

In the instant case, appellant initially filed the instant EEO complaint,

alleging that he was discriminated against when on March 26, 1998 he

received a letter stating �one more unscheduled absence and you will

be removed.� Thereafter, complainant filed an appeal with the MSPB

pertaining to his absences and removal. In reaching a decision on

complainant's appeal, the MSPB examined the circumstances surround

complainant's removal, including his March 1998 absences.

The Commission finds that the issue considered by the MSPB, appellant's

removal, is inextricably intertwined with the claim raised in

complainant's complaint. See Hopkins v. U.S. Postal Service, EEOC

Appeal No. 01961059 (February 5, 1997). Moreover, although the EEO

complaint was filed first and should have taken precedence over the MSPB

appeal, pursuant to 29 C.F.R. � 1613.405(b), the MSPB has considered

the underlying factual issues that are relevant to the complaint.

The adjudication of the case on the merits by MSPB is tantamount to an

election of remedies. See Aho v. Department of Agriculture, EEOC Request

No. 05860085 (May 22, 1985). In Aho, we stated that �the Commission

believes that upholding the unequivocal legislative interest to provide

only one forum in which to challenge the propriety of an agency action

alleged to have been based, in whole or in part, on discriminatory

factors, takes precedence over [complainant's] equitable entitlement to

have an adjudication of that issue in one forum or the other. Further,

�the Commission is mindful of the rationale of the doctrine of res

judicata, which estops a party from establishing jurisdiction in a

second forum when the involved issues have been decided, or could have

been raised and adjudicated in previous litigation prompted by the

same controversy between the same parties.� See id. citing Stevenson

v. International Paper Co., 516 F.2d 103 (5th Cir. 1975).

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:

Jan. 13, 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 Assistant1On 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.