01A22939
09-06-2002
James Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Bailey v. United States Postal Service
01A22939
September 6, 2002
.
James Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22939
Agency No. 1C-151-0083-01
DECISION
Complainant filed an appeal with this Commission from an agency decision
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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On July 23, 2001, complainant filed a formal complaint claiming that
he was discriminated against on the bases of race, disability and
retaliation when: on or about March 6, 2001, he mailed a package to an
EEOC Administrative Judge(AJ) and it was not received by the AJ. He
contends that the package never left the postal station, resulting in
an untimely filing and the loss of his hearing rights.
On September 10, 2001, the agency issued a decision dismissing the
complaint for failure to state a claim. The agency reasoned that although
complainant claims that he was denied his right to a hearing when his
package was not delivered to the EEOC hearing unit in Philadelphia, he
did not demonstrate that the non-delivery affected a term, condition, or
privilege of his employment. Further, the agency noted that complainant
brought the matter to the attention of the EEOC AJ.
As a preliminary matter we note that while the agency dismissed the
complaint for failure to state a claim, the claim is more appropriately
analyzed under 29 C.F.R. � 1614.107(a)(8). EEOC Regulation 29 C.F.R. �
1614.107(a)(8) provides that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the EEO process must be raised within the underlying complaint not
as a new complaint. See EEOC - Management Directive 110 (as revised
Nov. 9, 1999) 5-23, 5-25 to 5-26.
Here, complainant contends that he was discriminated against when a
package he sent to the EEOC's Philadelphia District Office was never
received by the AJ. He argues that as a result, he was denied a hearing.
We find that complainant has alleged dissatisfaction with the processing
of his prior complaint. He should raise this in the context of the
previous complaint, rather than file a new complaint on the matter.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
September 6, 2002
__________________
Date