0120101476
08-09-2010
Anthony Cirillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Anthony Cirillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101476
Agency No. 1C191000210
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 19, 2010, 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.
BACKGROUND
The nature of Complainant's complaint is unclear, but it appears that Complainant alleges that the Agency subjected him to discrimination on the bases of race (unspecified), color (unspecified), disability (unspecified), age (unspecified at time of incidents), and reprisal for prior protected EEO activity under the ADEA when:
1. On an unspecified date, Complainant's request for a reasonable accommodation was denied;
2. On an unspecified date, Complainant was denied 2 hours of overtime;
3. On an unspecified date, Complainant was denied 4 hours of overtime;
4. On an unspecified date, Complainant was denied union representation;
5. On an unspecified date, Complainant was denied a detail;
6. On an unspecified date, Complainant was denied a detail on Tour 1;
7. On September 25, 2007, Complainant was issued a Letter of Warning (LOW);
8. On an unspecified date, Complainant was issued a Removal Notice; and
9. A prior settlement agreement was breached.
The Agency characterized the issues differently, as follows: "On various dates from January 2207 [sic] through September 2008, the Complainant requests that his pending EEO complaint (1C-191-0013-07) be amended to include physical disability based on information he received on or about October 28, 2009." FAD, p. 1. The Agency dismissed the claim on the grounds that the Complaint stated the same claim as a claim (pending claim) under Agency No. 1C-191-0013-07 that was currently pending before an EEO Administrative Judge. According to the Agency, in the pending claim, Complainant alleged discrimination on the bases of race, color, religion, national origin, age, disability, and reprisal when "on or about January 5, 2007, Complainant was placed off duty and subsequently issued a notice of 14 Day suspension on January 31, 2007." Id., p. 2.
While Complainant's statements on appeal are unclear, it appears that Complainant is arguing that he is raising new claims of discrimination based on incidents that occurred after January 5, 2007.
ANALYSIS AND FINDINGS
We note initially that, assuming Complainant is seeking to amend a complaint that is currently pending before an EEO AJ, the way for Complainant to do this is not to file a new EEO complaint but rather to contact the AJ in charge of the Hearing, pursuant to 29 C.F.R. � 1614.106(d). Indeed it appears from the informal complaint that Complainant did notify the AJ that he wished to amend his complaint. See EEO Counselor's report. It is therefore not clear why the Agency treated Complainant's request to amend as a separate and distinct complaint of discrimination, and further, why the FAD dismissed the complaint for stating the same claim as a pending claim. Furthermore, the Agency has not included copies of the pending claim to show that the current claim is the same as the pending claim. Finally, we note that the matters raised by Complainant in his formal complaint, such as the denial of reasonable accommodation and the breach of a settlement agreement as well as other matters, do not appear to be the same matters as those described by the Agency in describing the pending claim (being placed off duty on January 5, 2007 and subsequently issued a 14-Day suspension.). We note in this regard that, while Complainant has not specified when the various incidents he raises in the formal complaint occurred, he maintains on appeal that they occurred after January 5, 2007. We therefore find that the Agency has not met its burden of establishing that the matters raised by Complainant in this complaint are the same as those raised in the pending claim.
We further find, however, that the claims should be dismissed pursuant to � 1614.107(a)(2) on the grounds that the matters were not brought to the attention of an EEO Counselor. The Counselor's report indicates that Complainant sought to amend an existing complaint by adding disability as a basis of discrimination. The matters raised in the formal complaint, such as the denial of a reasonable accommodation, the denial of overtime, the denial of details, the issuance of a LOW, the removal notice and the breach of a settlement agreement, are not like or related to amending an existing complaint to include a new basis of discrimination. We therefore AFFIRM the FAD's dismissal of the Complaint, albeit on different grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the
Court 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
August 9, 2010
__________________
Date
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0120101476
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101476