01A30235_r
02-19-2003
Curtis W. Webb, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Curtis W. Webb, Sr. v. United States Postal Service
01A30235
February 19, 2003
.
Curtis W. Webb, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30235
Agency No. 1G-772-0036-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 27, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of sex (male) and reprisal for prior EEO activity when:
On May 18, 2001, by [complainant] being male, she did not think that
a male gender could not get sick. She did not believe the Doctor nor
[complainant]. She was still angry about a previous complaint filed
against her and her management behavior.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim that
is pending before the agency or Commission. The agency acknowledged that
the statement on complainant's formal complaint is unclear; however,
it concluded that a fair reading of complainant's complaint is that
he is alleging discrimination when he was issued a removal notice on
March 13, 2001, removing him from the agency effective April 27, 2001.
The agency noted that complainant previously filed Case No. 1G-772-0020-01
on November 13, 2001, regarding his removal.
Upon review, we find that the agency properly determined that in
the present complaint, complainant challenged his removal from the
agency. Specifically, we note that on his request for counseling
complainant states that he called in for sick leave based on his
doctor's recommendation and was out for depression from January 6,
2000, to May 18, 2001. Also on his request for counseling, complainant
states that all documentation was turned in as instructed yet he was
still dismissed from the agency. Further, we note that on his formal
complaint complainant requests backpay and reinstatement of his job as
remedies for his complaint.
The record reveals that complainant previously filed Case
No. 1G-772-0020-01 on November 12, 2001, alleging that his doctor released
him on May 18, 2001, and when he reported to work he was told that he
could not enter the building because he did not work there anymore.
As a remedy for Case No. 1G-772-0020-01, complainant requested backpay
and reinstatement of his job. The record reveals that the agency
issued a final decision on Case No. 1G-772-0020-01 on January 25, 2002,
dismissing complainant's complaint for untimely EEO Counselor contact.
Thus, the present complaint was properly dismissed for stating the same
claim that is pending before or has been previously decided by the agency
or Commission.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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 19, 2003
__________________
Date