01A12070_r
05-02-2001
Mario A. Hopper v. United States Postal Service
01A12070
May 2, 2001
.
Mario A. Hopper,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12070
Agency No. 4-J-481-0179-00
DECISION
Upon review, the Commission finds that the agency's decision dated January
24, 2001, dismissing complainant's complaint for raising the matter in an
appeal to the Merit Systems Protection Board (MSPB) is proper pursuant to
29 C.F.R. � 1614.107(a)(4). In the present case, complainant initially
filed the EEO complaint at issue on December 16, 2000, alleging that he
was subjected to discrimination based on his race when on September 3,
2000, he was told �all you people get on welfare,� and on November 15,
2000, his statements were misrepresented during a meeting. As relief,
complainant requested reinstatement and compensatory damages. Thereafter,
on January 4, 2001, complainant filed an appeal to the MSPB raising
the issue of his removal. Complainant was notified of his removal on
November 7, 2000, and it was effective December 22, 2000.
Upon review we find that the issue raised before the MSPB, i.e.,
complainant's removal, is inextricably intertwined with the claims raised
in the instant complaint, particularly given the remedial action requested
by complainant in his EEO complaint. Accordingly, the Commission finds
that the agency's dismissal of the complaint was proper. See Hopkins
v. United States Postal Service, EEOC Request No. 01961059 (February
5, 1997); Spriesterbach v. United States Postal Service, EEOC Appeal
No. 01A00346 (April 6, 2000) (citing Aho v. Department of Agriculture,
EEOC Request No. 05860085 (May 22, 1985)). The agency's decision is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2001
__________________
Date