01973919
11-19-1998
Theo Kazamias,) Appellant,) v.) William J. Henderson,) Postmaster General,) United States Postal Service) (Northeast/New York Areas), Agency.)
Theo Kazamias,)
Appellant,)
)
v.) Appeal No. 01973919
) Agency No. 4B-028-1070-95
William J. Henderson,)
Postmaster General,)
United States Postal Service)
(Northeast/New York Areas), )
Agency.)
_______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision concerning
his equal employment opportunity (EEO) complaint, which alleged
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 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed 6 out of
appellant's 8 previous allegations for stating the same claim that
had been decided by the agency and/or Commission in accordance with 29
C.F.R. � 1614.107(a).
BACKGROUND
On July 5, 1995, appellant, then a Postmaster, in the West Kingston, Rhode
Island, Post Office, EAS-22, filed a formal complaint of discrimination.
Appellant alleged that the agency discriminated against him on the bases
of age (DOB, 2/27/41) and national origin (Greek) when on March 20, 1995,
he was issued a Letter of Warning (LOW) in lieu of a 14-day suspension for
failing to discharge his assigned duties in a conscientious and effective
manner. The agency conducted an investigation, provided appellant
with a copy of the investigative report, and advised appellant of his
right to request either a hearing before an EEOC administrative judge
(AJ) or an immediate final agency decision (FAD). On January 11, 1996,
appellant requested a hearing, and a copy of the investigative report
was transmitted to an EEOC AJ. On February 24, 1997, appellant filed a
motion to amend his complaint to include a continuing violation theory.
On March 19, 1997, the designated AJ returned the complaint file to the
agency for a FAD regarding the following 8 allegations of discrimination:
(1) The agency refused to place appellant in a comparable Manager of ETU,
In-Plant, position;
(2) The agency refused to place or transfer appellant to another available
engineering Manager position;
(3) The agency assigned appellant to a position for which he was not
qualified;
(4) Appellant was demoted on April 15, 1993;
(5) Appellant was subjected to harassment and other adverse working
conditions on February 14, 1995;
(6) Appellant was issued a Letter of Warning (LOW) on March 20, 1995;
(7) Appellant was denied an EXFC bonus on February 15, 1996; and
(8) Appellant was threatened with termination on July 26, 1996,
on a basis which did not apply to him.
In accordance with EEOC Regulation 29 C.F.R. � 1614.107(a), the agency
dismissed allegations (1), (2), (3), (4), (7), and (8) for stating the
same claim that has been decided by the agency or Commission. The agency
argues that on March 31, 1995, appellant filed a formal EEO complaint
(Agency No. 4B-028-1072-95) which addressed allegations (1) through
(4) above. Furthermore, appellant filed a second formal EEO complaint on
September 4, 1996, (Agency No. 4B-028-1065-96) which addressed allegations
(7) and (8) above. Allegations (5) and (6) were accepted by the agency
for further investigation. It is from this decision that appellant
now appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in pertinent part,
that an agency shall reject a complaint of discrimination which, "states
the same claim that is pending before or has been decided previously by
the agency." The Commission's Compliance Manual, MD-110, Ch. 4-6, makes
it clear that in order for an agency to properly reject an allegation for
raising the same claim as a previously accepted complaint, the rejected
allegations must set forth "identical matters" as those contained in
the earlier complaint pending before or decided by the agency.
In the present matter, allegations (1) through (4) are fleshed out
examples of the general allegations made on the formal complaint form
which are repetitive of the claims already addressed by both the agency
(in Agency No. 4B-028-1072-95), then subsequently by the Commission
in Appeal No. 01955302. Similarly, on October 2, 1996, the agency
issued its FAD dismissing the exact same allegations as contained in
allegations (7) and (8) in Agency No. 4B-028-1065-96. The record shows
that allegations (7) and (8) concern identical matters which the agency
has already addressed in a decision and which appellant did not appeal
to the Commission within the applicable time limits.
In regards to appellant's continuing violation theory, we find that
the events which have been dismissed had a definite conclusion, such
as a promotion or pay increase, that are in the EEOC's view, isolated
incidents which do not qualify under the continuing violation theory,
even if such events repeatedly occurred. See Robinson v. U.S. Department
of Commerce, Appeal No. 01831212 (September 29, 1983).
CONCLUSION
Based upon a thorough review of the record, and for the reasons cited
above, it is the decision of the Equal Employment Opportunity Commission
to AFFIRM the final agency decision. The agency is to continue its
investigation of allegations (5) and (6).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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 19, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations