01994053
06-16-2000
Angel L. Castello, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Angel L. Castello, )
Complainant, )
)
v. ) Appeal No. 01994053
) Agency No. 1-G-781-0014-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 23, 1999 decision dismissing
the complaint on the grounds that it raises the same claim that is pending
before or has been decided by the agency or the Commission, is proper
pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(1)).<1>
The record shows that on February 22, 1999, Complainant filed the instant
complaint, claiming that he had been discriminated against on the basis
of reprisal when on December 5, 1998, two employees were allowed to
extend their training, while in December 1997, he was not allowed to
extend his MDO training. Specifically, complainant stated that �when
I was on training on Phase I Acting MDO, I wasn't extended . . .�
The record further shows that by formal complaint filed on May 27, 1998
(Complaint No. 1-G-781-0043-98), Complainant claimed that he had been
discriminated against on the bases of race, national origin, and sex when,
while on Phase I training program, he asked why he was not being used as
an Acting MDO and was informed that the agency wanted to train someone
else. Complainant also claimed that he was on �Phase I program and
[has] only been train[ed] on one tour duty.� In the Informal Complaint
of Discrimination form, the EEO Counselor indicated that complainant
asserted that he had received training on only one tour and had never
been rotated, though the MDO training program includes training on tour
1 for four months, and training on tour 3 for four months.
The agency issued a final decision dismissing the complaint on the basis
that the instant complaint was identical to the complaint filed under
Agency Case Number 1-G-781-0043-98.
The Commission has consistently held that the discovery of a new
comparison employee does not give rise to a new claim. See Daniels
v. USPS, EEOC Appeal No. 01920439 (February 23, 1992). The record shows
that in the instant complaint, Complainant raised the issue of the MDO
training denied to him and provided to other employees. The record
further shows that although these employees were different employees
from the ones Complainant mentioned in his prior complaint, the issue
remained the same: MDO training denied to Complainant. The Commission
determines that the matter raised in the instant complaint is basically
a reiteration of the matter raised in Complaint No. 1-G-781-0043-98.
Accordingly, the agency's decision to dismiss the complaint was proper
and is AFFIRMED.
Finally, we note that Complainant used his appeal statement to raise
for the first time the issue of not being evaluated in December 1997.
We remind Complainant that pursuant to EEOC Regulations he must first
raise EEO issues with the EEO Counselor and not with the Commission.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 16, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________
_________________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.