0120093660
02-04-2010
James D. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
James D. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120093660
Agency No. 1H-381-0057-09
DECISION
On September 5, 2009, complainant filed a timely appeal with this
Commission from the agency's decision dated August 5, 2009, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the reasons that follow, we AFFIRM the agency's decision.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Native American), national origin
(Chickamauga Cherokee), sex (male), color (white), disability (heart
surgery, bipolar disorder), age (66), and in reprisal for prior protected
activity when, on May 24, 2009, he received a Form 50 showing that he
had been removed from the agency effective May 1, 2009.1 The agency
dismissed this complaint on the grounds that complainant had raised the
issue of his removal in a prior complaint, Agency No. 1H-381-0043-07.
The agency's final decision in the prior complaint was affirmed on appeal
to the Commission. James D. Walker v. United States Postal Service,
EEOC Appeal No. 0120072867 (September 9, 2008), req. to recon. den.,
EEOC Request No. 0520090582 (December 10, 2009).
In Appeal No. 0120072867, the Commission found that the agency did not
discriminate against complainant when, on February 28, 2007, he received a
Notice of Removal effective March 30, 2007. The Commission found that the
agency articulated a legitimate, nondiscriminatory reason for its actions,
i.e., complainant was removed after the agency's Office of the Inspector
General determined that complainant had submitted altered/fraudulent
medical documents in support of his injury compensation claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that the agency shall dismiss an entire complaint that
"states the same claim that is pending before or has been decided by
the agency or Commission." The Commission's federal case precedent has
held that, to state the same claim, the new claim must involve identical
matters to the earlier complaint. Further, "identical" does not mean
"similar"; in order for a new complaint to be dismissed as identical to
a previous one, the elements of the new complaint must be identical to
the elements of the prior complaint in terms of time, place, incident,
and parties. Malik v. USPS, EEOC Request No. 05981172 (November 4, 1999);
Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April
5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24,
1997); see also Terhune v. USPS, EEOC Request No. 05950907 (July 18,
1997); Russell v. Department of the Army, EEOC Request No. 05910613
(August 1, 1993). Unless the new complaint raises separate, new, and
distinct incidents of discrimination, it will be subject to dismissal
for stating the same claim in a previous matter. Battle v. Department
of Transportation, EEOC Request No. 05A20049 (September 26, 2003).
In this matter, we find that Agency No. 1H-381-0057-09 states the same
claim raised by complainant in Agency No. 1H-381-0042-07, addressed in
EEOC Appeal No. 0120082867. Both complaints concerned complainant's
removal from the agency. The completed Form 50 implemented and confirmed
complainant's separation from the agency merely implementing the Notice of
Removal issued in February 2007. The record reflects that from January
11, 2007, complainant was on an indefinite suspension without pay.
He submitted a grievance on this matter on March 26, 2007. The record
shows that complainant's grievance remained open until withdrawn in
a Pre-Arbitration agreement on May 1, 2009. Thereafter, the agency
processed a Form 50, showing that complainant was removed from the agency
effective May 1, 2009, and the agency sent the completed Form 50 to him.
In his appeal, complainant presented a "bright light timeline," including
selected events from September 2003, mentioning his on-the-job injury, his
criminal indictment and plea agreement, his suspension, and his efforts to
obtain certain documents.2 He argued that the agency failed to provide
the prior complaint, and his appeal should be reversed and remanded for
processing on its merits. He also submitted several documents already
present in the record before us, although their import was not made
clear in his comments. None of complainant's contentions and arguments
addresses the matter before us, that is, whether the agency properly
dismissed his new complaint (No. 1H-381-0057-09) on the ground that is
stated the same claim as in the prior complaint (No. 1H-381-0042-07).
With regard to his argument that the agency did not provide a copy of
the complaint in No. 1H-381-0042-07, the record contains the relevant
documents showing the content of this prior complaint.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision dismissing complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 4, 2010
Date
1 Complainant also alleged "elder abuse" as a basis, but did not explain
what he meant by this. To the extent that complainant was alleging
discrimination based on age, his claim is within the purview of the ADEA.
2 In describing his receipt of the Form 50 documenting his removal,
complainant stated, "[T]his did not and has not happened." To the extent
that complainant may believe that he was not separated from the agency,
in fact, his termination was effective May 1, 2009.
??
??
??
??
2
0120093660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093660