01996304
04-17-2001
Philip S. Hegedus, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Philip S. Hegedus v. U.S. Postal Service
01996304
April 17, 2001
.
Philip S. Hegedus,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996304
Agency No. 1-D-401-0037-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 8, 1999, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
According to the record, complainant contacted an EEO Counselor on March
22, 1999, and subsequently filed a formal complaint on April 19, 1999.
In his complaint, complainant claimed that the agency discriminated
against him on the bases of race, color, national origin, age and reprisal
(for prior EEO activity) when:
1. On an undetermined date in approximately 1997, the agency excluded
his children from his health insurance coverage, which violated a state
court order and resulted in his incarceration;
2. By letter dated March 24, 1997, the agency denied his request
for extended medical leave and told him he would be charged with AWOL
(absence without leave);
3. On March 27, 1997, he was denied leave under the Family and Medical
Leave Act;
4. On June 27, 1997, he resigned under duress; and
5. On March 31, 1999, the agency denied his request to restore his
Economic Value Added (EVA) balance which he forfeited when he resigned
under duress.
In its decision, the agency dismissed claims 1, 2, 3, and 4 on the grounds
of untimely EEO Counselor contact, finding complainant's contact was far
beyond the (45) forty-five day time limit regarding these incidents, and
that he was aware of this time limit by virtue of his prior EEO activity.
Alternatively, the agency also dismissed these claims on the grounds that
they had already been adjudicated in complainant's appeal to the Merit
System Protection Board (MSPB), which resulted in a Settlement Agreement.
Finally, the agency dismissed claim 5 on the grounds of failure to state
a claim, finding that it was a claim of breach of the MSPB Settlement
Agreement, and must be addressed in that forum.
Complainant now appeals this determination.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. See Howard v. Department
of the Navy, EEOC Request No. 05970852 (February 11, 1999). However,
the agency or the Commission shall extend the time limits when the
individual shows that he was not notified of the time limits and was not
otherwise aware of them, that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
Based on our review of the record, we find that complainant's initial EEO
contact regarding claims 1, 2, 3, and 4 is clearly beyond the regulatory
time limit. Moreover, the record shows that complainant filed prior EEO
complaints against the agency such that he may be deemed to have knowledge
of the applicable time limit. Furthermore, we find that complainant
has provided no explanation to justify his late EEO Counselor contact.
Therefore, we find that the agency properly dismissed claims 1, 2, 3,
and 4 on the grounds of untimely EEO Counselor contact.
Accordingly, we AFFIRM the agency's dismissal of claims 1, 2, 3, and 4.<1>
EEOC Regulation 29 C.F.R. � 1614.302(b) provides that "an aggrieved
person may initially file a mixed case complaint with an agency pursuant
to this part or an appeal on the same matter with the MSPB pursuant to
5 C.F.R.�1201.151, but not both." This section further provides that
whichever is filed first shall be considered an election to proceed
in that forum." Finally, EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
provides that an agency shall dismiss a complaint or portion of a
complaint where the complainant has raised the matter in "an appeal to
the Merit Systems Protection Board and �1614.301 or �1614.302 indicates
that the complainant has elected to pursue the non -EEO process."
In this case, we find that complainant elected the MSPB forum regarding
his alleged constructive discharge when he filed an appeal with the MSPB
on July 26, 1997. This action culminated with a settlement agreement
entered into by the parties on November 17, 1997. In pertinent part,
this settlement agreement requires the agency to reinstate complainant
to a certain identified position at the agency, and sets forth numerous
terms, conditions, and requirements regarding that reinstatement.
Therefore, we find that complainant's entitlement to restoration of
the EVA based on his reinstatement is a question which can only be
answered in the context of the reinstatement provisions of the MSPB
settlement agreement. Specifically, provision 8 of the settlement
agreement indicates that complainant will not be entitled to back pay,
attorney's fees or other benefits. Whether restoration of the EVA,
as raised in claim 5, is included in these �other benefits� is a matter
which must be resolved in the MSPB forum. In this regard, we note that
provision 10 provides that the settlement agreement is to be made a part
of the MSPB record for enforcement purposes, such that jurisdiction
over breach claims resides with the MSPB.
Accordingly, we find that the agency properly dismissed claim 5, and we
AFFIRM that determination.
In conclusion, for the reasons set forth above, we find that the agency
properly dismissed the instant complaint in its entirety, and we AFFIRM
that determination.
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
April 17, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Because we have affirmed the agency's dismissal of claims 1, 2, 3,
and 4 on the grounds of untimely EEO Counselor contact, we will not
address the agency's alternative grounds for dismissal of these claims.