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.