01A33164_r
08-22-2003
James Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Bailey v. United States Postal Service
01A33164
August 22, 2003
.
James Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33164
Agency No. HO-0006-02
Hearing No. 170-A2-8462X
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated June 13, 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.
In his formal complaint, complainant alleged that he was the victim of
unlawful employment discrimination on the bases of race, disability, and
in reprisal for prior protected activity when on October 12, 2001, he was
denied the right to use official time to copy EEO documents for an appeal.
At the conclusion of the investigation, the agency informed complainant
of the right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision by the agency.
By Request for Hearing form received by the agency on August 29, 2002,
complainant requested a hearing before an AJ.
The AJ determined that a review of the record reveals that complainant's
complaint focuses on his dissatisfaction with the agency's processing of
a previously filed complaint which included the denial of official time
to secure documents to prepare for an EEO appeal. By Order to Show Cause
dated January 13, 2003, the AJ ordered complainant to show cause why his
complaint should not be dismissed as a complaint alleging dissatisfaction
with the processing of a previously filed complaint, pursuant to 29
C.F.R. � 1614.107(a)(8). The AJ determined that complainant submitted
a timely response to the Order. The AJ further determined that in his
response, complainant contends that the denial of official time was in
reprisal for having filed prior complaints against the same EEO Manager
for improper processing of his complaints. On January 31, 2003, the AJ
issued a decision dismissing the complaint for alleging dissatisfaction
with the processing of a previously filed complaint. Subsequently,
the agency implemented the AJ's decision in a final action dated June
13, 2003. It is this decision that is the subject of the instant appeal.
The Commission notes that although the instant complaint was dismissed
on the grounds that it alleges dissatisfaction with the processing of
a previously filed complaint, it is more properly analyzed in terms
of whether it states the same claim raised in a prior complaint.
EEOC Regulation 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 the Commission.
The record reflects that in Complaint No. 4C-150-0036-02, complainant
alleged that on October 17, 2001, he was notified that he was denied
official time to copy documents in his EEO file. The agency dismissed
that complaint pursuant to 29 C.F.R. � 1614.107(a)(8). On appeal,
the Commission noted that a determination of complainant's claim of
discrimination is not relevant to the claim of being denied official
time, and that a denial of official time would be a violation of 29
C.F.R. � 1614.605(b). The Commission determined that the agency
was not in violation of 29 C.F.R. � 1614.605(b), because complainant
failed to show that he was denied a reasonable amount of official time
to prepare his complaint or respond to agency or Commission requests
for information. Bailey v. USPS, EEOC Appeal No. 01A23220 (October
17, 2002); request to reconsider denied, EEOC Request No. 05A20348
(February 5, 2003).
The Commission finds that the claim raised in the instant complaint is the
same matter that was raised in Complaint No. 4C-150-0036-02. Accordingly,
the agency's final action 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
August 22, 2003
__________________
Date