01A40485_r
03-12-2004
Robert M. Malewich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert M. Malewich v. United States Postal Service
01A40485
March 12, 2004
.
Robert M. Malewich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40485
Agency No. 1H-321-0029-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 15, 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his formal complaint, filed on May 9, 2003, complainant alleged that
he was subjected to discrimination on the bases of race, sex, color,
disability, age, and in reprisal for prior EEO activity when on December
4, 2002, he awoke and suddenly realized that since August 1995, he had
been continuously harassed by the employees of African-American ethnicity.
Further, in his Information for Pre-Complaint Counseling narrative
statement, complainant wrote �since November 2001 up to and inclusive
of the most recent racist assault of November 13, 2002, I have been
repeatedly and systematically personally attacked by the African-American
crew that dominates the North Florida District and the facility and
Tour of duty I am assigned. I have been the victim of untold numbers
of discriminatory racist acts, and at least 3 outrageously ridiculous
disciplinary actions at the hands of African-American employees to whom
I am compelled to report.� Furthermore, complainant claimed that he
was subjected to a hostile work environment when two African-American
management officials ordered him to a fitness for duty examination in
June 2002.
The agency dismissed the complaint on the grounds that it states the
same claims that had been raised in previously filed EEO complaints
(Agency Nos. 1H-321-0095-02; 1H-321-0039-02; 1H-321-0072-02; and
1H-321-0084-02).<1>
The Commission will first provide the following synopsis of the matters
raised in the four prior complaints identified in the final agency
decision:
Agency No. 1H-321-0095-02
The record reflects that the agency accepted the following claims for
investigation: (1) on July 31, 2002, complainant was given a fact-finding
interview; (2) on August 7, 2002, he was issued a Letter of Warning (LOW);
(3) on August 8, 2002, he was instructed not to wear denim jeans to work;
and (4) on August 8 and 9, 2002, his solicitation posting was denied.
Agency No. 1H-321-0039-02
The record reflects that the agency accepted the following claims for
investigation: (1) on February 1, 2002, complainant was ordered to contact
his Supervisor about absences; (2) on February 19, 2002, he was denied a
change in his report time; (3) on February 24, 2002, management discussed
his leave request with craft employees; (4) on February 27, 2002, he was
issued a letter of concern; (5) on March 6, 2002, his request to attend
a developmental training seminar was denied; (6) on March 7, 2002, his
request for information regarding the letter of concern was denied; (7)
on March 9, 2002, he was not given the opportunity to apply for promotion;
(8) on March 12 and 20, 2002, he was denied higher level assignments;
(9) on March 15, 2002, he was denied a preferred tour of duty; and (10)
he was placed in a threatening situation by a senior postal official.
Agency No. 1H-321-0072-02
The record reflects that complainant previously filed a formal EEO
complaint concerning the following claims which were accepted for
investigation: on May 15, 2002, he was instructed to sign a medical
release form; on June 7, 2002, he was issued a Letter of Warning; as
of June 7, 2002, his requests to higher level management to discuss
work environment issues have been ignored; and on June 14, 2002, he was
ordered to take a Fitness for Duty examination.
Agency No. 1H-321-0084-02
The record reflects that the agency accepted the following claims for
investigation: when he has been consistently harassed by [Supervisor]
and most recently on July 18, 2002, he was questioned about his break
and drinking a cup of coffee.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides in part that the
agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or
Commission.
Upon review, the Commission finds that complainant's complaint contains
a generalized claim that he has been the victim of harassment by
African-American employees since 1995. In the prior complaints
cited above were more detailed in terms of being him subjected to
various alleged incidents of harassment by African-American employees.
The Commission further finds that the present and previous complaints
(Agency Nos. 1H-321-0095-02; 1H-321-0039-02; 1H-321-0072-02; and
1H-321-0084-02) involve the same claims, i.e. threatened and harassed
by other African-American employees; requests to higher level management
to discuss work environment issues were ignored; he was ordered to take a
Fitness for Duty examination by two African-American management officials;
and was subjected to disciplinary actions by African-American employees.
Accordingly, the agency's dismissal of the instant complaint on the
grounds that it raises the same claim addressed in prior complaints was
proper and 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
March 12, 2004
__________________
Date
1The record reveals that the agency inadvertently identified a previously
filed EEO complaint as 1H-321-0074-02 instead of 1H-321-0084-02.