Winfred C. Yerger, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01981810 (E.E.O.C. Mar. 16, 2000)

01981810

03-16-2000

Winfred C. Yerger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Winfred C. Yerger v. United States Postal Service

01981810

March 16, 2000

Winfred C. Yerger, )

Complainant, )

)

v. ) Appeal No. 01981810

) Agency No. 4-G-752-0229-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's November 26, 1997 decision

dismissing complainant's complaint, is proper pursuant to EEOC

Regulations.<1>

The record shows that after the agency removed complainant from the

position of Window Service Technician, PS-6, he filed an appeal before

the Merit Systems Protection Board (MSPB). On January 31, 1997, the

MSPB issued an initial decision that mitigated complainant's removal to

a 90-day suspension.

The record also shows that in February 1997, complainant sought EEO

counseling, alleging that he had been discriminated against on the basis

of reprisal when, on February 25, 1997, his bid position was posted for

bid, prior to the exhaustion of his MSPB appeal rights. As corrective

action, complainant requested inter alia compensatory damages. The EEO

Request for Counseling form, PS From 2564-A, reflects that compalinant

stated that "now that I have prevailed in the MSPB appeal, the Postal

Service refused to allow my return to work because another person is in

the bid."

On November 17, 1997, the MSPB dismissed the agency's petition for review

and ordered the agency to cancel complainant's removal, to reinstate

him effective June 30, 1995, and to issue a 90-day suspension in lieu

of the removal.

On November 25, 1997, the agency issued a final decision dismissing the

complaint on the grounds of mootness. On appeal, complainant contends

that his EEO complaint is an effort to "seek vindication of his rights

in connection with discrimination by the agency during the period of

interim relief". Complainant further states that "given the fact that

only the EEOC may adjudicate [his] claim for compensatory damages,

he should be allowed to present evidence" concerning said issue.

The record reflects that, on January 21, 1998, complainant filed a

Motion for Enforcement with the MSPB, in an effort to resolve MSPB

compliance issues.

A review of complainant's complaint shows that he claims that while

the agency's petition for review to the MSPB was pending, the agency

posted his bid position in an attempt to keep him away from his job if he

prevailed on the MSPB appeal. The record further shows that complainant

wants to be compensated for the damages he allegedly suffered while the

MSPB appeal was pending. Finally, his complaint shows that he has come

before the EEOC to claim damages that "only the EEOC can provide".

While the agency dismissed complainant's complaint on the grounds of

mootness, the Commission determines that this case is properly analyzed

in terms of whether it addresses the same matter that was raised in

an appeal to the MSPB, pursuant to 64 Fed. Reg. 37,644, 37656 (1999)

(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.107(a)(4)). We find it proper to dismiss complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(4), because the matter

raised in the instant complaint is inextricably intertwined with an

issue that was raised before the MSPB. Accordingly, the dismissal of

the 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).

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 16, 2000

___________ ______________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATION 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.