Julius Sims, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 22, 2005
01a55457 (E.E.O.C. Dec. 22, 2005)

01a55457

12-22-2005

Julius Sims, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Julius Sims v. United States Postal Service

01A55457

December 22, 2005

.

Julius Sims,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A55457

Agency No. 4H-300-0287-03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 12, 2005, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the basis of reprisal for prior EEO activity when:

On September 11, 2003 he became aware that two management officials

provided false information to law enforcement officials in a State

criminal proceeding against him.

The agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim, finding that the claim was an attempt

to lodge a collateral attack against another proceeding in the State

Court system. The Commission, however finds that the claim is more

properly analyzed as to whether the complaint states the same claim as

an issue that was addressed in another claim currently on appeal before

this Commission under EEOC Appeal No. 07A50073. In that case the agency

appealed an EEOC Administrative Judge's (AJ) finding of discrimination

based on race, color, and sex when complainant was issued a Notice of

Indefinite Suspension - Crime Situation and was charged with improper

off-duty conduct. The issue of whether or not the same two management

officials provided false information to law enforcement officials

regarding the same alleged criminal conduct was addressed in the AJ's

decision. While we recognize that in the present complaint, complainant

alleges discrimination based on reprisal, while alleging discrimination

based on race, color, and sex in his other complaint, it is well settled

that a complaint which states the same facts as a previous complaint,

but alleges discrimination on additional bases, will be deemed identical

to the earlier complaint and dismissed. Robbins v. United States Postal

Service, EEOC Request No. 01830664 (November 9, 1983). Accordingly, the

agency's final decision dismissing complainant's complaint is affirmed.

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

December 22, 2005

__________________

Date