01A42256_r
06-22-2004
Henry T. Phillips, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Henry T. Phillips v. United States Postal Service
01A42256
June 22, 2004
.
Henry T. Phillips,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42256
Agency No. 1-H-374-0007-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 21, 2004, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), disability, age (54 years), and in reprisal for prior EEO
activity when due to an on-the-job injury, his job assignment resulted
in a reduction in pay, denial of periodic pay increases, denial of upward
mobility and no representation continuously since February 23, 1996.
The complaint alleges that on a continuing basis since January 18, 1997,
complainant was placed in a position denying him upward mobility and
promotion, upgrades, overtime, higher level pay and provided only minimal
training, and that there were no records to support his receiving night
differential pay.
In its final agency decision, the agency dismissed complainant's
complaint, because the complaint contained the same claims complainant
brought in his prior two complaints, agency no. 1H-374-0010-02 filed on
February 13, 2002 and agency no. 4H-370-0146-02 filed on March 15, 2002
Equal Employment Opportunity Commission (EEOC) Regulation 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss an entire complaint
that states the same claim that is pending before or has been decided by
the agency or Commission. The Commission has held that the same claim is
one that sets forth identical matters. Terhune v. United States Postal
Service, EEOC Request No. 05950907 (July 18, 1997).
On appeal, complainant alleges that case No. 4-H-370-0146-02 deals
with complainant being informed that no records existed to support him
receiving night differential pay and the immediate case concerns his
denial of night differential pay. Complainant says that the two cases
are not identical and should be investigated. For purposes of determining
whether a new complaint states the same claim, the Commission focuses on
the action(s) or practice(s) of the agency about which the complainant
complains. Meros v. Department of Commerce, EEOC Request No. 05950690
(January 10, 1997). In this case, the allegations regarding night
differential pay involve the same action and practice of the agency and
should be considered identical. Furthermore, the claims regarding night
differential pay are essentially the same matters.
In the instant case, the claims set forth are identical to the
previous claims with the exception of the claim alleging the denial of
complainant's representation since February 1996. To the extent that
the claims in the instant case are the same as the previous claims,
we dismiss them.
In regard to the claim involving the denial of complainant's
representation continuously since February 23, 1996, we find that this
matter should be dismissed for failure to state a claim. The regulation
set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Complainant has failed to specify how the denial of representation
affected a term, condition or privilege of his employment which is
within the jurisdiction of the Commission to remedy. Therefore, for the
reasons stated above, we dismiss complainant's claim that he was denied
representation for failure to state a claim.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's claim.
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
_June 22, 2004_________________
Date