01A30980_r
03-26-2003
Jimmy Leong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jimmy Leong v. United States Postal Service
01A30980
March 26, 2003
.
Jimmy Leong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30980
Agency No. 1-F-942-0025-02
DECISION
Complainant appealed to this Commission from the agency's October 21,
2002 dismissal of his employment discrimination complaint. In his
complaint, complainant alleged discrimination on the basis of disability
(schitzotypal personality disorder) when he was mistreated from 1991
through his removal on January 28, 1999.
The agency dismissed the complaint for alleging the same matter raised
in a prior complaint. Alternatively, the agency dismissed the complaint
for untimely counselor contact. On appeal, complainant argues, through
his attorney, that the prior complaint is not identical, because it did
not allege the basis of disability. Complainant asserts that he was not
aware of his disability until it was diagnosed and explained to him on
June 17, 2002, but the agency should have been aware of it given their
Employee Assistance Counseling sessions with him.
The agency may dismiss complaints alleging harm from the same matters
previously raised. 29 C.F.R. � 1614.107(a)(1). Complainant clearly
alleged discrimination from his removal on the bases of race, color,
national origin, sex, religion, and age in a prior complaint. This
complaint was decided by an EEOC Administrative Judge, and appealed to
this Commission in EEOC Appeal No. 01A03781. The Commission affirmed
the AJ's finding of no discrimination. Leong v. United States Postal
Service, EEOC Appeal No. 01A03781 (Feb. 8, 2001), req. to recons. den.,
EEOC Request No. 05A10378 (Jun. 12, 2001).
Complainant's substitution of a new basis does not resurrect his claims.
Complainant �learned� of his diagnosis when his current attorney referred
him to a psychiatrist. Complainant was represented by an attorney,
albeit different counsel, for the hearing in his original complaint.
Complainant's last chance agreement outlined complainant's psychiatric
care responsibilities, but his attorney never attempted to amend the
complaint to add the basis of disability. Therefore, the Commission
rejects his argument that his psychiatric difficulties are a newly found
basis as disingenuous. Regardless, it would not justify a new complaint
concerning the same incidents previously reviewed; the incidents of
his complaint are identical to those previously filed. Accordingly,
the agency's dismissal is AFFIRMED.<1>
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
March 26, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Since the Commission is affirming the agency's same claim dismissal,
we will not address the agency's alternative grounds for dismissal,
i.e., untimely counselor contact.