01A20768_r
02-27-2002
Melvin C. Helms, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Melvin C. Helms v. United States Postal Service
01A20768
February 27, 2002
.
Melvin C. Helms,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20768
Agency No. 4D-280-0027-98
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 7, 2001, dismissing his complaint of
unlawful employment discrimination in violation of 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. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of disability and
age when on November 1, 1997, he became aware that two agency officials
delayed paperwork submitted for OWCP Claim which in turn delayed his
benefits and caused additional physical, mental and financial damage.
On November 7, 2001, the agency issued its final decision dismissing
complainant's complaint for failure to state a claim. Specifically,
the agency stated that complainant raised the same matters in his two
prior EEO complaints, Agency Nos. 4D-280-0225-97 and 4D-280-0032-98,
consolidated and decided by the agency in its July 22, 1998 FAD.
On appeal, complainant states �At the time of my complaint I suffered
from major depression and did not have an attorney, my complaint was done
without assistance and as best I could do at the time with my condition.�
In response, the agency argues that the instant complaint and Agency
Nos. 4D-280-0225-97 and 4D-280-0032-98 state the same underlying claim.
Further, the agency requests that we affirm its final decision.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or
Commission. Upon review, we find that the record establishes that the
delayed paperwork submitted for OWCP Claim was previously raised in
Agency Nos. 4D-280-0225-97 and 4D-280-0032-98. Therefore, the agency
correctly determined that the instant complaint states the same claim
as that decided by the agency. Accordingly, the agency's final decision
dismissing the complaint was proper and it is hereby 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
February 27, 2002
__________________
Date