01A21263_r
05-08-2003
Henry Cabone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Henry Cabone v. United States Postal Service
01A21263
May 8, 2003
.
Henry Cabone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21263
Agency No. 1F-933-0010-01
DECISION
Complainant initiated contact with an EEO Counselor on April 18, 2001.
On September 13, 2001, complainant filed a formal EEO complaint wherein he
claimed that he was discriminated against on the bases of his disability
(left thumb/elbow and unspecified) and in reprisal for his previous
EEO activity under the Rehabilitation Act when he received a proposed
removal on September 10, 1997, and a notice of suspension on May 13, 1998.
The record reveals that complainant filed the instant complaint in an
attempt to recoup losses that he allegedly suffered due to the agency's
breach of a settlement agreement. In EEOC Appeal No. 01985223 (August
10, 2000), the Commission found that the settlement agreement had been
breached and the agency was ordered to comply with the settlement by
removing a letter of warning from complainant's official personnel file.
The letter of warning had been improperly cited in the proposed removal
and notice of suspension at issue in the instant matter. In EEOC
Request No. 05A01227 (March 1, 2001), the Commission denied complainant's
request for reconsideration. The Commission reiterated that the agency
was ordered to remove the letter of warning from complainant's official
personnel file.
By decision dated October 29, 2001, the agency determined that the
instant complaint stated the same claim as that in matters previously
decided by the agency and the Commission. According
to the agency, the claim concerning the proposed removal was addressed in
a global settlement agreement on November 8, 1997, in which complainant
agreed to withdraw all EEO complaints, grievances, National Labor
Relations Board charges, and civil actions filed before the date of the
agreement except for those related to the issue of overtime. The agency
stated that in the settlement, the proposed removal was reduced to
a fourteen day paper suspension subject to reduction to a letter of
warning on May 15, 1998. With regard to the notice of suspension, the
agency stated that it was addressed in a complaint filed by complainant,
Agency No. 1F-933-0015-98.
On appeal, complainant states that he filed the instant complaint for
the purpose of recouping the losses that he incurred due to the agency's
settlement breach. Complainant claims that he experienced emotional
pain and suffering, medical expenses, and legal costs, and that he
utilized 240 hours of sick leave. To the extent that complainant is
challenging the remedy he received in his breach of settlement claim,
we find that this claim does not state a claim separate from his breach
claim adjudicated in EEOC Appeal No. 01985223, req. to reconsider denied,
EEOC Request No. 05A01227.
Furthermore, we find that the claim concerning the proposed removal
was addressed in the global settlement agreement of November 8, 1997,
wherein complainant agreed to withdraw all EEO complaints except those
related to the issue of overtime and the agency agreed to reduce the
proposed removal to a fourteen day paper suspension immediately and then
to a letter of warning on May 15, 1998.
With regard to the notice of suspension, we find that this issue
was previously raised by complainant in Agency No. 1F-933-0015-98.
The Commission addressed the notice of suspension in its decision in
EEOC Appeal No. 01990940 (January 28, 2000). Therefore, we find that
this claim is properly dismissed for stating the same claim that was
previously raised before the agency.
Therefore, we find that the instant complaint is properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision dismissing the complaint 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
May 8, 2003
__________________
Date