01976192
10-27-1998
Franklin D. Nicoloudakis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Franklin D. Nicoloudakis v. United States Postal Service
01976192
October 27, 1998
Franklin D. Nicoloudakis, )
Appellant, )
)
v. ) Appeal No. 01976192
) Agency No. 1A-086-0017-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission finds the agency committed
no reversible legal error in its July 2, 1997 final decision, which
appellant received on July 12, 1997, dismissing appellant's March 13, 1997
formal EEO complaint for raising the same issues previously raised. See 29
C.F.R. �1614.107(a), in relevant part.<1> We find appellant has offered
no arguments on appeal to persuade us to reach a contrary conclusion.<2>
We find appellant's allegations that, for prohibited reasons, the agency
placed him in emergency off-duty status and denied him "gross back pay
plus interest" for the period of November 13, 1986, to October 31, 1988,
have been raised by appellant and addressed by the agency in the past.
We find, for example, that a May 12, 1993 FAD ("the prior FAD"), under
agency case number 1A-1090-93, dismissed an April 16, 1993 EEO complaint
by appellant, wherein the prior FAD stated in pertinent part as follows:
[Appellant was] denied a request for backpay for a two-year, November 13,
1986 through October 29, 1988, indefinite suspension which [appellant]
sustained.
In dismissing appellant's April 16, 1993 complaint, the prior FAD
declared that "[appellant's] claim for pay for the period November 13,
1986 through October 29, 1988 was previously filed on May 25, 1989 and
rejected by the agency on August 15, 1989."
We find from a review of appellant's April 16, 1993 complaint, as well
as his May 23, 1989 complaint, provided by the agency in the present
matter, that appellant previously raised the issues of his being placed
in emergency off-duty status and denied back pay for the period November
13, 1986 through October 29, 1988.<3> We also find appellant's complaint
to be an impermissible collateral attack on an arbitrator's decision, as
well as on a Merit Systems Protection Board (MSPB) decision dismissing
an "appeal" by appellant on jurisdictional grounds. We find further,
from appellant's notice of appeal, that he raised the same allegations in
arbitration and before the MSPB. The arbitrator ruled against appellant
on June 6, 1996. An MSPB administrative judge dismissed, on October 22,
1996, appellant's appeal from the arbitrator's June 6, 1996 determination.
In this regard, we find appellant's present complaint not to be an appeal
to the Commission from either the arbitrator's or MSPB's decisions.<4>
In view of our decision in the present matter, we need not decide
whether appellant's complaint constitutes an "abuse of process," as the
agency has requested us to do in its response to appellant's appeal.<5>
However, appellant is advised that the Commission may, in the future,
summarily dismiss any appeals filed with it by appellant where the sole
issue on appeal is the same as the one presented in the present matter.
Having reviewed the entire record in the present matter, the arguments
on appeal, including those not expressly addressed herein, and for the
foregoing reasons, the Commission hereby AFFIRMS the FAD's dismissal of
appellant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1EEOC Regulation 29 C.F.R. �1614.107(a) provides, in pertinent part,
that an agency shall dismiss a complaint, in whole or in part, that
"states the same claim that is pending before or has been decided by
the agency or Commission[.]"
2In light of our decision in this matter, we do not address the FAD's
dismissal of appellant's present complaint for untimely EEO Counselor
contact.
3In his April 16, 1993 formal EEO complaint, appellant referenced the
period November 13, 1986-October 31, 1988, which is identical to the
period covered in appellant's present complaint.
4We note appellant cited, inter alia, in his present complaint, the
arbitrator as a person who allegedly discriminated against him.
5Cf. Story v. U.S. Postal Service, EEOC Request No. 05970083 (May 22,
1998).