01A24581_r
02-27-2003
Steven M. Vivolo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven M. Vivolo v. United States Postal Service
01A24581
February 27, 2003
.
Steven M. Vivolo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24581
Agency No. 4E-980-0045-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 10, 2002, 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.
In his formal complaint filed on March 18, 2002, complainant alleged
that he was subjected to discrimination on the bases of national origin,
religion, disability, age, and in reprisal for prior EEO activity when,
from December 1995 until the present, he was denied reinstatement to
agency employment.
In its final decision, the agency dismissed the complaint for untimely
EEO Counselor contact, and for raising the same claim that is pending
before or has been decided by the agency or Commission. Specifically,
the agency determined that complainant's December 5, 2001 EEO Counselor
contact was 382 days after his latest reinstatement denial, and that
complainant's complaint was identical to complaints that he was denied
reinstatement from 1996 through 2001.
Upon review, the Commission finds that the agency properly dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the
same claim as that pending before or previously decided by the agency
or Commission. The record indicates that complainant has filed numerous
complaints claiming that the agency denied his request for reinstatement,
beginning with his complaint that he was denied reinstatement in
December 1995.<1> In particular, the record shows that on August 22,
2001, complainant filed a complaint in agency Case No 4E-980-0127-01
asserting that he had been discriminatorily denied reinstatement from
December 1995 until the present. In the instant case, complainant again
claims that the agency's denial of his requests for reinstatement since
1995 were discriminatory. However, complainant has not alleged that
the circumstances surrounding his qualifications for reinstatement
have changed from his previously filed complaint in that case, or
from any of his previously filed complaints concerning the denial of
his reinstatement. We therefore find that the present complaint was
properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
Because we affirm the agency dismissal for the reason stated herein,
we find it unnecessary to address the alternative dismissal grounds.
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, 2003
__________________
Date
1 Vivolo v. USPS, EEOC Appeal No. 01971802
(March 3, 1999), request for reconsideration denied, EEOC Request
No. 05990496 (March 7, 2000), wherein the Commission found that the
agency did not discriminate against complainant when it denied his request
for reinstatement on December 19, 1995, based on his prior conduct with
the agency.