01985420
11-23-1999
Dennis D. Petrack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis D. Petrack, )
Complainant, )
)
v. ) Appeal No. 01985420
) Agency No. 4-C-442-0122-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq.<1> The final agency decision was received
by complainant on June 26, 1998. The appeal was postmarked July 7,
1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at and hereinafter referred to as 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
Complainant contacted an EEO counselor on January 15, 1998. Specifically,
complainant alleged that he was discriminated against when on April 1,
1998 he received various documents which were defamatory and slanderous
and were withheld from EEOC hearings. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on May 1, 1998,
complainant filed a formal complaint alleging that he was the victim of
unlawful employment discrimination on the bases of sex , physical and
mental disability, and reprisal.
On June 24, 1998, the agency issued a final decision (FAD) dismissing
complainant's complaint on the grounds that it states the same claim that
is pending before or has been decided by the agency or the Commission.
The FAD determined that the claims in the instant complaint filed by
complainant are identical to and arise from the same transaction as the
matters raised in agency case number 4-C-442-0143-98.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1), the regulations provide that an
agency shall dismiss a complaint or portion of a complaint that states
the same claim that is pending or has been decided by the agency or
the Commission.
The Commission has reviewed complainant's prior claims of discrimination
as discussed in the agency's June 11, 1998 final decision concerning
agency case number 4-C-442-0143-98. Therein, the agency indicates that
complainant requested counseling concerning claims that from March 1 - 31,
1998 he received documents that he felt were defamatory and slanderous.
The instant complaint also addresses purportedly defamatory and slanderous
actions taken by the agency. The Commission determines that the issues
raised in the instant complaint concern the same matters and arise out
of the same transaction as the issues decided by the agency in case
number 4-C-442-0143-98. Accordingly, the agency's decision dismissing
complainant's complaint pursuant to 29 C.F.R. �1614.107(a)(1) was proper
and is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 at 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).
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
November 23, 1999
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________
DATE Equal Employment Assistant
1On 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.