0120073290
04-17-2009
Dale E. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Dale E. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120073290
Agency No. 1J602003007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 14, 2007, 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 race (Black) and color (black) when, on June 11, 1999,
he was issued a Notice of Removal effective August 7, 1999 for failing
to meet the conditions of a "last chance" agreement dated September 18,
1997.
The record shows that complainant was a Mail Handler at the Palatine,
Illinois Processing and Distribution Center at the time of his removal,
and has been off the agency's payrolls since November 2, 2000.
Complainant requested pre-complaint processing on February 17, 2007.
On June 7, 2007, complainant filed a formal complaint of discrimination
with the agency.
The agency dismissed the complaint on numerous bases including untimely
EEO contact and raising the same claim as a prior case. The agency noted,
inter alia, that complainant had filed a formal complaint, 1J-602-0075-99,
on October 22, 1999 which included the identical removal claim alleged
herein. An EEO investigation was conducted and a final agency decision
was issued dismissing that complaint. Complainant appealed the agency's
dismissal to the Commission and on March 29, 2001, the EEOC Office of
Federal Operations affirmed the agency's action. See Smith v. United
States Postal Service, EEOC Appeal No. 01A05180 (March 29, 2001).
Complainant did not request reconsideration of that decision.
The Commission's regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. It has long been established that "identical" does not
mean "similar." The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident, and parties. See Jackson v. Department of the Air Force,
EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds EEOC
Request No. 05960524 (April 24, 1997).
We agree with the agency that complainant previously raised the
identical claim, which has been fully adjudicated. Assuming, arguendo,
that the prior EEO claim is not identical to the pending complaint we
nevertheless agree with the agency's conclusion that complainant failed
to timely initiate contact with an EEO Counselor in accordance with 29
C.F.R. � 1614.107(a)(2). As the agency noted in its final decision,
complainant's EEO contact of February 17, 2007, occurred approximately
seven and one-half years after the effective date of his removal;
six years and seven months after the arbitration decision upholding his
removal; and over six years after the EEOC decision affirming the agency's
removal action. All actions were well beyond the 45-day limitation.
Accordingly, complainant's EEO contact was untimely. Therefore, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 17, 2009
Date
2
0120073290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120073290