01a34574
12-04-2003
Jimmy L. Fleming v. United States Postal Service
01A34574
12/4/2003
.
Jimmy L. Fleming,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34574
Agency No. HC-0005-03
DECISION
Complainant timely filed an appeal on July 28, 2003, with this Commission
from the agency's decision dated February 25, 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.<1>
Complainant initiated EEO Counselor contact on August 20, 2002.
Informal efforts to resolve his concerns were unsuccessful. In his
formal complaint, dated December 16, 2002, complainant alleged that he
was subjected to discrimination on the bases of race and in reprisal
for prior EEO activity.
The agency in its final decision dated February 25, 2003, determined
that complainant's complaint was comprised of the following claim:
the [agency] delayed the processing of [complainant's] EEO Complaint
numbered HO-0005-98 when it failed to issue a final agency decision.<2>
The agency in its final decision dismissed complainant's complaint
for alleging dissatisfaction with the processing of a previously filed
complaint, pursuant to 29 C.F.R. � 1614.107(a)(8).
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, 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 a new complaint. See EEOC Management Directive 110 (as revised
November 9, 1999).
Here, complainant contends that he was discriminated against when the
agency delayed the processing of a separate EEO complaint. The Commission
finds that complainant's claim is an improper �spin-off� of his prior
complaint, and that the agency's dismissal pursuant to 29 C.F.R. �
1614.107(a)(8) was proper.
Accordingly, the agency's decision dismissing complainant's complaint
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
12/4/2003
Date
1On appeal, the agency argues that
complainant's appeal was untimely filed. The Commission notes that
the final agency decision indicated that it was presumed to be received
by complainant within five days of its mailing. However, complainant
submits various documents on appeal reflecting that he was ordered to
active duty with the Department of the Army on January 2, 2003, at Fort
Stewart, Georgia; and that he was being deployed to Kuwait in support
of Operation Enduring Freedom for a period not to exceed 365 days.
Complainant asserts that he first received the final decision when it
was faxed to him by the agency on July 17, 2003. Given the circumstances
of this case, we find that the instant appeal was timely filed.
2Complainant filed an appeal from the agency's final decision. The
Commission affirmed the agency's decision finding no discrimination.
Fleming v. United States Postal Service, EEOC Appeal No. 01A30533
(February 27, 2003).