01983094
08-24-1999
Darrell E. Battles, Appellant, V. William J. Henderson, Postmaster General, United States Postal Service, Agency, ______________________________)
Darrell E. Battles v. United States Postal Service
01983094
August 24, 1999
Darrell E. Battles, )
Appellant, )
)
V. ) Appeal No. 01983094
) Agency No. 1-I-631-0121-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
______________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 C.F.R. Section
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 on appeal is whether the agency properly dismissed appellant's
complaint for stating the same claim that is pending before or has been
decided by the agency.
BACKGROUND
Appellant filed a formal complaint on June 30, 1997, alleging
discrimination based on race (Caucasian), color (white), sex (male), age
(DOB 01-14-39), retaliation (prior EEO activity), and physical handicap
(neck injury, 50% disabled veteran) when, on April 21, 1997, the EEO
counselor informed appellant he would not receive copies of certain
information from his file in EEO complaint case no. 4-I-630-1076-96.
Appellant initiated EEO counseling on June 2, 1997, alleging he made
numerous requests of the EEO counselor for copies of machine time click
information from the investigative file of his pending EEO complaint
filed against the agency. Appellant alleges the counselor told him he
would not receive the information. A second EEO officer told appellant
the EEOC judge would review the file and determine if the time click
information would become part of the case.
In the final agency decision dated February 9, 1998, the agency dismissed
appellant's claim for stating the same claim that has been decided by
the agency. The agency noted appellant should have exercised his appeal
rights as outlined in the final agency decision in that case.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
After a thorough review of the record, the Commission finds that
appellant's allegation is a collateral attack upon the agency's processing
of his previous complaint. Specifically, the actions complained of involve
records used in that complaint's investigative file. See Wills v. DOD,
DFAS, EEOC Appeal No. 05970596 (July 3, 1998). Accordingly, the Commission
finds that appellant's complaint was properly dismissed pursuant to 29
C.F.R. �1614.107(a).
CONCLUSION
The agency's decision to dismiss the complaint is AFFIRMED.
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
August 24, 1999
_________________________ ___________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations