01a33712
07-20-2004
Eugene A. Barnard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene A. Barnard v. United States Postal Service
01A33712
July 20, 2004
.
Eugene A. Barnard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33712
Agency No. 4G-760-0131-03<1>
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 6, 2003, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The record reflects that the agency hired complainant as a letter
carrier in December 1983. Following on-the-job injuries, complainant
filed a workers' compensation claim, whereupon the agency placed him
on limited duty. Because he was unable to perform any letter carrier
functions, complainant accepted a temporary limited duty letter carrier
position, in which he was doing clerk craft work. On April 26, 1995,
the agency, pursuant to what it contends was its obligation under a
national arbitration award, reassigned complainant to a permanent
limited duty position as a PTF clerk.
On August 8, 1997, complainant filed a formal complaint (Agency
No. 4G-760-0262-98), claiming that the agency discriminated again
him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding that the agency discriminated against
complainant based on disability, by failing to act on his requests for
reasonable accommodation in the form of reassignment to a comparable
vacant position, rather than reassigning him the less favorable PTF
clerk position he received. The AJ awarded complainant, inter alia,
reassignment to a position comparable to his former full-time carrier
position, back-pay, and non-pecuniary damages in the amount of $5,000.
The agency's final order declined to implement the AJ's decision.
On appeal, the Commission reversed the agency's final order with respect
to complainant's claim of disability discrimination, and modified the
relief ordered by the AJ. The Commission ordered the agency to take
various remedial actions. Barnard v. USPS, EEOC Appeal No. 07A10002
(August 2, 2002).
In the formal EEO complaint that is the subject of the instant appeal,
filed on March 13, 2003, complainant alleged that he was subjected to
discrimination on the bases of race (Basque), national origin (American),
disability (arthritis in both knees), and in reprisal for prior EEO
activity when:
(1) on December 10, 2002, he received a letter from the Reasonable
Accommodation Committee stating that no reasonable accommodation or
vacant or funded positions were available;
(2) on December 31, 2002, he received a letter changing his Labor
Distribution Code from LDC 69 (permanent injured employee) to LDC 14
(mail processing clerk); and
(3) effective January 11, 2003, he was classified as a restricted
duty employee.
In its final decision, the agency dismissed the instant complaint pursuant
to 29 C.F.R. � 1614.107(a)(8), on the grounds that the complaint alleges
dissatisfaction with the processing of a previously filed complaint
(Agency No. 4G-760-0262-98).<2>
On appeal, complainant submits copies of medical and supporting
documentation reflecting the agency's alleged noncompliance with the
Commission's August 2, 2002 order in Agency No. 4G-760-0262-98.
Upon review, the Commission determines that complainant's claims (1)
- (3) are properly dismissed pursuant to 29 C.F.R. �1614.107(a)(8).
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency shall
dismiss a complaint that alleges dissatisfaction with the processing
of a previously filed complaint. The Commission determines that
all of complainant's claims concern the agency's allegedly unfair and
discriminatory processing of the Commission's Order of remedial action in
EEOC Appeal No. 07A10002. Under the Commission's regulations, the agency
is required to dismiss complainant's claims of improper processing.
We note that since the filing of the present appeal, the agency has
notified the Commission of its actions taken to comply with the previous
Order in EEOC Appeal No. 07A10002. Should complainant still have concerns
regarding the agency's compliance, he should properly raise his concerns
by filing a Petition for Enforcement pursuant to 29 C.F.R. � 1614.503(a).
The agency's dismissal of the instant complaint was proper and 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
July 20, 2004
__________________
Date
1The record reveals that in its final
decision, the agency inadvertently identified this case as Agency
No. 4G-760-0130-03, instead of as Agency No. 4G-760-0131-03.
2The record reveals that in its final decision, the agency inadvertently
identified this case as Agency No. 4G-760-0226-99, instead of as Agency
No. 4G-760-0262-98.