01A33045_r
08-28-2003
Floyd G. Jordan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Floyd G. Jordan v. United States Postal Service
01A33045
August 28, 2003
.
Floyd G. Jordan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33045
Agency No. 4J-604-0053-03
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated March 31, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In the instant formal complaint, filed on February 25, 2003, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American), sex (male), color (unspecified), age (D.O.B. 6/4/48),
and in reprisal for prior EEO activity when on January 7, 2003, he was
notified that he was not eligible for the �early out� retirement in 1992.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
on the grounds that it states the same claim raised in his previous
complaint (Agency No. 4J-604-0040-02). The record reflects that in
4J-604-0040-02, complainant claimed that in December 2001, he learned
that agency employees received accrued benefits after they were no longer
employed, and he did not; and that in December 2001, the agency refused
to withdraw his resignation.<1>
The agency also determined that the matter raised in the instant complaint
appeared to �once again [describe] dates and incidents that have had
decisions rendered by the MSPB. . .�
Regarding the MSPB's relevance to the instant complaint, the record in
this case reflects that in July 2000, complainant wrote to the agency,
claiming benefits of an �early out� retirement program were offered to
certain agency employees in 1992; and that on August 15, 2000, the agency
responded that complainant was not eligible for those benefits because he
lacked the required years of service and had not reached the minimum age.
Complainant filed an appeal from the agency's August 15, 2000 response
to the MSPB. The MSPB dismissed the appeal for lack of jurisdiction
(MSPB Docket No. CHO752000838-I-1).
Thereafter, complainant filed an appeal from the MSPB decision with the
United States Court of Appeal for the Federal Circuit. In a decision
issued on July 16, 2002, the Court affirmed the MSPB dismissal �without
prejudice to any claim that [complainant] might have with another agency.�
The 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.
The Commission determines that the alleged incident in the prior complaint
(Agency No. 4J-604-0040-02) and the incident raised in the instant
complaint are not identical. Specifically, the record reflects that the
matter raised in Agency No. 4J-604-0040-02 relates to other employees
receiving accrued benefits after they were no longer employed while
complainant did not receive accrued benefits (December 10, 2001); and
when on December 17, 2001, the agency refused to withdraw complainant's
resignation. In contrast, the instant complaint addresses the claim when
on January 7, 2003, complainant was notified that he was not eligible
for the �early out� retirement in 1992.
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). The matters raised in Agency 4J-604-0040-02
(other employees receiving accrued benefits after they were no longer
employed while complainant did not; and the agency's refusal to withdraw
complainant's resignation) do not address the identical issue as raised
in the instant complaint.
Moreover, the Commission notes that although the issue of complainant's
eligibility for a 1992 �early out� retirement may have been addressed
in an appeal to the MSPB which was dismissed, the United States Court
of Appeal when affirming the MSPB dismissal, stated that it affirmed the
MSPB dismissal without prejudice to any claim that complainant may have
with another agency.
Accordingly, the agency's decision to dismiss complainant's complaint on
the grounds that it raises the same matter that was raised in a prior
complaint and/or before the MSPB was improper, and is hereby REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 28, 2003
__________________
Date
1The record reflects that Agency
No. 4J-604-0040-02 was the subject of a Commission decision that affirmed
the agency's dismissal of this complaint, on the grounds it constituted a
collateral attack on a decision by the Merits Systems Protection Board,
dated November 29, 2001. Jordan v. USPS, EEOC Appeal No. 01A24315
(January 6, 2003).