01992672
09-14-1999
Michael E. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael E. Williams v. United States Postal Service
01992672
September 14, 1999
Michael E. Williams, )
Appellant, )
) Appeal No. 01992672
v. ) Agency No. 1E-801-0113-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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 � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for stating a claim that has already been decided by the agency
and for untimely contact with an EEO Counselor.
BACKGROUND
Appellant alleged in his complaint filed on August 11, 1997 (complaint-1)
that the agency discriminated against him on the bases of race
(African-American), sex (male), physical disability, and reprisal when
management did not provide appellant with work assignments within his
restrictions or find him a job from October 1996 through September 1997.
Appellant requested a hearing in front of an administrative judge.
The hearing was conducted on July 21, 1998.<1> At the hearing,
appellant became aware of a limited duty assignment that was issued
to him on October 13, 1996. Appellant contacted an EEO Counselor on
August 14, 1998, concerning the allegation that the agency acted in
a discriminatory manner when it did not give notice of the October 13,
1996 assignment. He filed a complaint on October 13, 1998 (complaint-2),
which appellant alleges that the agency discriminated against him on
the bases of race, physical disability, and reprisal for not informing
him of the assignment.
In its FAD, the agency dismissed complaint-2 pursuant to 29
C.F.R. �1614.107(a) and 29 C.F.R. �1614.107(b). The agency found that
appellant raised the issue of limited duty assignments in complaint-1.
The agency stated that this assignment was offered as evidence in an
EEO hearing conducted on July 21, 1998. The agency issued a final
decision regarding complaint-1 on January 5, 1999. Accordingly, the
agency dismissed appellant's allegation for it raised an issue that is
identical to a claim previously decided by the agency. The FAD went
on to state that appellant's request for EEO Counseling was untimely.
The agency found that appellant's representative was given the EEO case
file which included the October 13, 1996 limited duty assignment on
March 11, 1998. Therefore, it concluded that complainant should have
had reasonable suspicion of the limited duty assignment on March 11, 1998
when his representative received appellant's case file. Accordingly, the
agency dismissed appellant's complaint, pursuant to 29 C.F.R. �1614.107(a)
and 29 C.F.R. �1614.107(b). This appeal of complaint-2 followed.
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 Commission has interpreted this regulation to require that the
complaint must set forth the "identical matters" raised in a previous
complaint filed by the same complainant, in order for the subsequent
complaint to be rejected. Russell v. Department of the Army, EEOC Request
No. 05910613 (August 1, 1991) (interpreting 29 C.F.R. �1614.215(a)(1)-the
predecessor of 29 C.F.R. �1614.107(a)).
After a careful review of the documentation submitted by the agency, we
find that the contentions raised in appellant's complaint-1 are identical
to the allegation at issue here. We note that appellant filed complaint-2
in which he alleged that the agency discriminated against him when it
failed to inform him of the limited duty assignment in October 1996.
In complaint-1, appellant claims that he was discriminated against when
the agency did not issue him a limited duty assignment from October 1996
through September 1997. We find that the crux of both of appellant's
complaints is the agency's failure to issue limited duty assignments
to him. This includes the agency not providing him with notice of
limited duty assignments. Complaint-1 was adjudicated by the agency.
Consequently, we find that the dismissal of complaint-2 pursuant to 29
C.F.R. �1614.107(a) was correct.<2>
CONCLUSION
Accordingly, the decision of the agency 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. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 4, 1998, the Administrative Judge issued a recommended
decision in which he found that the agency discriminated against appellant
on the basis of his disability. On January 5, 1999, the agency accepted
the Recommended Finding of the Administrative Judge and established
that it could not determine whether the appellant was entitled to or
eligible for a limited duty job or other benefits. The agency found
that it required medical evaluations and examinations of appellant to
determine his eligibility.
2 The Commission finds that it is unnecessary to address the issue of
untimely EEO contact.