01985418
06-14-1999
Jerry L. Labinski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jerry L. Labinski v. United States Postal Service
01985418
June 14, 1999
Jerry L. Labinski, )
Appellant, )
)
v. )
) Appeal No. 01985418
William J. Henderson, ) Agency No. 1-I-542-0005-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a
final agency decision (FAD), dated May 29, 1998, which the agency
issued pursuant to EEOC Regulation 29 C.F.R. �1614.107(a) and (b).
The Commission accepts the appellant's appeal in accordance with EEOC
Order No. 960, as amended.
The appellant sought EEO counseling on March 27, 1998 regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against on the basis of physical disability (CP Veteran)
when his paperwork was incorrectly processed for a Mail Handler position
on January 18, 1996.
The agency dismissed the appellant's complaint for stating a claim
that is pending before the agency, citing Case No. 4-I-530-0119-97.
The FAD also dismissed the complaint for untimely counselor contact.
The FAD determined that appellant should have contacted an EEO counselor
no later than March 4, 1997<1>. Contact was not made, however, until
over a year later.
On appeal, appellant contends that he did not suspect discrimination
based on physical disability until March 2, 1998. At that time, appellant
argues, he received the record on Case No. 4-I-530-0119-97 and discovered
that his non-selection could be based on disability discrimination.
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.
According to the record, on May 6, 1998, appellant filed the instant
complaint, alleging he was "never given physical for Mail Handler job...."
In his Information for Precomplaint Counseling form, appellant described
the alleged discriminatory incident as "[i]ncorrectly processed paperwork
for Mail Handler position. See EEO Case #4-I-530-0119-97."
The record reveals, Case No. 4-I-530-0119-97 was filed by appellant on
August 5, 1997. Appellant alleged discrimination based on physical
disability when he was passed over in the hiring of a Mail Handler
position. The investigator for Case No. 4-I-530-0119-97 noted in his
report that "complainant declined to take the Strength and Stamina
test...."
On appeal appellant does not dispute the assertion that the instant case
and Case No. 4-I-530-0119-97 address the same hiring matter. Instead,
appellant argues that "non-vet hiring before disabled vet hiring is
not similar to clerical errors [committed] in the hiring" process, an
argument we do not consider persuasive. Additionally, appellant contends
that his counselor contact is timely, with respect to the instant case,
because only when he received his file on Case No. 4-I-530-0119-97 did he
suspect discrimination. This assertion again highlights the similarity
in the two cases.
Therefore, the Commission finds that the agency properly dismissed
appellant's complaint for stating a claim that is before the agency.
The instant case and Case No. 4-I-530-0119-97 address the same alleged
incident of discrimination and the failure to be given a physical for a
Mail Handler position. Because of our disposition we do not consider
whether appellant's complaint was properly dismissed for untimely EEO
counselor contact.
The agency's decision dismissing appellant's complaint 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
June 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1It appears that the agency inadvertently added a year to the time
limitation for counselor contact. Timely contact would have occurred
forty-five (45) days after January 18, 1996, on March 4, 1996.