01980209
11-06-1998
Richard M. Riles, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard M. Riles v. United States Postal Service
01980209
November 6, 1998
Richard M. Riles, )
Appellant, )
)
v. ) Appeal No. 01980209
) Agency No. 1-D-241-0030-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on September 13, 1997. The appeal
was postmarked September 29, 1997. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states the same claim that is pending
before or has been decided by the agency or Commission.
BACKGROUND
Appellant contacted an EEO counselor on June 30, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when he was denied overtime from June 16, 1997
to July 1, 1997. Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, on August 12, 1997, appellant timely filed
a formal complaint of discrimination on the bases of race (black), sex
(male), age (50), and disability (10 point veteran), wherein he alleged
discrimination with regard to his receipt of a letter of warning.
On September 10, 1997, the agency issued its final decision dismissing
appellant's complaint on the grounds that it states the same claim
that is pending before or has been decided by the agency or Commission.
The FAD determined that the allegations in the instant complaint filed
by appellant are identical to and arise from the same transaction as
the matters raised in agency case number 1-D-241-0029-97.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The instant formal complaint contains allegations of discrimination
concerning a Letter of Warning issued to appellant. The agency has
provided a copy of another formal complaint filed by appellant and having
agency case number 1-D-241-0029-97. Therein, appellant challenges a
Letter of Warning as discriminatory. Both formal complaints allege
discrimination in that appellant is the only black employee to receive
the Letter of Warning despite the fact that other employees have records
worse than appellant's record. On appeal, appellant has offered no
evidence or argument whatsoever, to contradict the agency's decision.
Based on a review of the record, we determine that the agency's decision
in the instant matter was proper.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
November 6, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations