01a50306
02-10-2005
James A. Carter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James A. Carter v. United States Postal Service
01A50306
February 10, 2005
.
James A. Carter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50306
Agency No. 1B-051-0010-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 20, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, the complainant
was employed as a Mail Handler at the agency's White River Junction
in Vermont. In a amended complaint filed on September 4, 2004, the
complainant alleged ongoing hostile environment and discrimination on
the bases of his race (African-American) and reprisal for prior EEO
activity when:
Effective May 18, 2003, the complainant was directed to go to lunch at
7:15 pm; and
on June 16, 2004, the complainant was given an official discussion for
leaving mail on the rollers.
The agency dismissed the claims for stating the same claim that the agency
says is pending in another complaint, agency number 1B-051-0001-04, which
the agency stated was pending, for a hearing, before the EEOC's New York
District Office.<1> The Commission regulation set forth at 29 C.F.R. �
1614.107(a)(1) states, in pertinent part, that an agency shall dismiss a
complaint which states the same claim that is pending before or has been
decided by the agency or Commission. A later claim or complaint is "like
or related" to the original complaint if the later claim or complaint
adds to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990). Complainant's new claims of discrimination,
pertinent to the May and June 2004 incidents, are also �like or related�
to the amended complaint 1B-051-0001-04 which alleged co-worker and
supervisor harassment, such that the matters could be considered as
evidence in the complainant's ongoing harassment / hostile environment
claims. Although the complainant's claims of incidents occurring
in May and June 2004 were not investigated with the 2003 claims, the
record indicates that they were presented to the AJ for consideration.
Accordingly, we AFFIRM the final agency decision of dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 10, 2005
__________________
Date
1The record indicates that the complainant
filed a formal complaint on December 5, 2003, which was accepted for
investigation and which alleged an ongoing pattern of discrimination
harassment and that complaint was amended on March 8, 2004 to allege
co-worker harassment.