01983267
09-22-1999
James D. Walker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
James D. Walker v. United States Postal Service
01983267
September 22, 1999
James D. Walker, )
Appellant, )
) Appeal No. 01983267
v. ) Agency No. 4-H-320-0044-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq, and the Age Discrimination in Employment Act of 1967, as amended,
29 C.F.R. �621 et seq. Accordingly, the appeal is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for stating the same claim that is pending before or has been
decided by the agency or Commission.
BACKGROUND
Appellant filed a formal complaint on December 26, 1997, alleging
discrimination on the basis of race (Native American), sex (male),
national origin (Chickamauga Cherokee), age (over 40) and reprisal (prior
EEO activity)<1> when on October 22, 1997, he was denied reinstatement
as a mailhandler at the Pensacola, Florida plant facility.
In a June 1988, agreement, appellant voluntarily resigned from the agency
and agreed to withdraw all pending appeals, and the agency agreed to
remove a Letter of Warning and Notice of Proposed Removal from appellant's
file and change his 1988 evaluation to a favorable rating. Appellant then
unsuccessfully applied for reinstatement in October 1989 and July 1990,
for reconsideration in January 1990, and for reinstatement in September
1991 and October 1991. The agency informed appellant he would never be
rehired. Appellant applied again unsuccessfully for rehire in May 1993,
and filed a formal complaint in November 1993, which was dismissed by
the agency for untimely EEO counselor contact. The Commission remanded
for supplemental investigation, and later affirmed. (James D. Walker
v. United States postal Service, EEOC Request 01951615 (September
8, 1995)). Appellant filed successive complaints alleging either
discrimination or breach of settlement agreement which were dismissed
by the agency and ultimately affirmed by the Commission.<2>
Appellant consolidated his allegations regarding his reinstatement
requests and filed suit in District Court. The Court found that
appellant's November 1993, complaint was untimely, that his May 1993,
reinstatement request was an attempt to revive stale claims, having
been informed in 1991 he would never be rehired, and that his settlement
agreement did not guarantee appellant a favorable reference. Appellant
filed additional complaints which the agency dismissed as stating the
same claim pending in a civil action or raised in a prior complaint.
The Commission affirmed these decisions.<3>
The agency dismissed the current complaint finding in its final decision
that appellant filed an identical complaint<4> on March 18, 1996.
On appeal, appellant argues that the agency failed to produce evidence
that his present re-hire request is identical to his prior reinstatement
request, and alleges that the agency breached a settlement agreement
dated June 20, 1988, entered into between the agency and appellant.
The agency argues that the Commission previously affirmed its dismissals
of appellant's allegations regarding reinstatement as having been
presented in his civil action.<5> The agency contends that the settlement
agreement was not breached and that appellant's allegations of breach
were also previously adjudicated.<6>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The record clearly indicates that the instant case is identical in
material respects to case No.4-H-320-1203-96, which was dismissed by the
agency for stating the same claim that was pending in a civil action.
The Commission affirmed that decision. Appellant can not reactivate a
claim merely by again requesting reinstatement/rehire.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
Sept. 22, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 Between July 1994, and November 1998, the Commission issued twenty
four decisions on appellant's allegations of discrimination and breach
of a settlement agreement involving appellant's repeated, unsuccessful
requests for reinstatement and reconsideration.
2 The Commission remanded some complaints for further investigation, then
later affirmed. See James D. Walker v. USPS, EEOC Request No 01943446
(July 14, 1994); James D. Walker v. USPS, EEOC Request No. 01944257
(October 4, 1994); James D. Walker v. USPS, EEOC Request No. 01943867
(March 7, 1995); James D. Walker v. USPS, EEOC Request No. 01951615
(September 8, 1995; James D. Walker v. USPS, EEOC Request No. 01954600
(February 7, 1996); James D. Walker v. USPS, EEOC Request No. 01954913
(February 20, 1996); James D. Walker v. USPS, EEOC Request No. 01961181
(May 31, 1996); James D. Walker v. USPS, EEOC Request No. 01961066
(February 18, 1997);James D. Walker v. USPS, EEOC Request No. 01965974
(June 17, 1997); James D. Walker v. USPS, EEOC Request No. 01962779
(April 2, 1998); James D. Walker v. USPS, EEOC Request No. 01980120
(July 28, 1998); James D. Walker v. USPS, EEOC Request No. 01980173 (July
28, 1998); james D. Walker v. USPS, EEOC Request No. 01980125 (July 28,
1998); James D. Walker v. USPS, EEOC Request No. 01980175 (July 28, 1998);
James D. Walker v. USPS, EEOC Request No. 01980107 (November 13, 1998).
3 See James D. Walker v. USPS, EEOC Request No. 01956454 (November 22,
996); James D. Walker v. USPS, EEOC Request No. 01970117 (January 22,
1997); James D. Walker v. USPS, EEOC Request No. 01965678 (April 3,
1997);James D. Walker v. USPS, EEOC Request No. 01971375 (April 3,
1997); James D. Walker v. USPS, EEOC Request No. 05960621 (May 31, 1997)
4 Case number 4-H-320-1203-96.
5 The Commission found that appellant's allegations regarding
reinstatement to the Pensacola facility and breach of a settlement
agreement were presented in his civil actions, JC-95-212 and JC-95-282,
and affirmed the agency's decision to dismiss on that basis.
6 In the 1997 District Court decision, the judge ruled that nothing
in the agreement guarenteed appellant a positive reference for future
employment.