01984230_r
06-02-1999
Rodney J. Lawver, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rodney J. Lawver, )
Appellant, )
)
v. ) Appeal No. 01984230
) Agency No. 1E-984-0005-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final agency decision was issued on
April 22, 1998. The appeal was postmarked May 12, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed an allegation
of appellant's complaint on the grounds that it states the same claim
as that pending before or that has been decided by the agency.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on December 3, 1997. On February 10, 1998, appellant filed a formal
EEO complaint wherein he alleged that he had been discriminated against
on the bases of his sex (male) and in reprisal for his previous EEO
activity when:
1. On November 14, 1997, he was required to take an unnecessary fitness
for duty examination.
2. On November 15, 1997, he received a letter from the Senior Plant
Manager that contained a refusal to conduct an investigation into
threatening letters sent to appellant through the mail.
3. On December 19, 1997, the Tacoma Plant Manager specified three
additional requirements before he could make a determination that
appellant could return to the Tacoma Processing and Distribution Center.
The record also contains a complaint filed by appellant on August 6, 1996.
In that complaint (Agency No. 1E-984-1025-96), appellant alleged in
part that he had been discriminated against when management refused
to investigate incidents of threats and racism made against him by
a coworker.
In its final decision with regard to the instant complaint, the agency
dismissed the second allegation of appellant's complaint on the grounds
that it states the same claim that is pending before or that has
been decided by the agency. According to the agency, this allegation
was accepted for investigation on October 8, 1996, as part of Agency
No. 1E-984-1025-96. Allegations 1 and 3 of the instant complaint were
accepted for investigation.
On appeal, appellant contends that it should have been obvious to agency
officials that the relevant threatening letters were received in April
1997 and September 1997. Appellant notes that these letters could not
have been part of the issue accepted for investigation in October 1996.
In response, the agency asserts that all information submitted by
appellant concerning threatening letters discloses that the letters were
received by appellant in 1996. According to the agency, the letters
raised by appellant in the instant matter concern letters sent by the
Plant Manager in 1997.
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.
It has long been established that �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed the second allegation of the instant complaint
under this provision on the grounds that this allegation stated the
same claim as that in Agency No. 1E-984-1025-96. The previous complaint
filed by appellant also referenced threatening letters sent to appellant.
Appellant, however, maintains that the letters at issue in the instant
complaint are letters that were sent subsequent to the acceptance of
the previous complaint. We find that although the subject matter of
both complaints is similar, the complaints are not identical. We note
that the complaints do not relate to the same event as the alleged
incidents occurred on different dates. While the agency contends that
the threatening letters identified by appellant were received by him
in 1996, and that the letters identified in the present case involve
management's refusal to conduct an investigation, the record indicates,
as stated by appellant, that the threatening letters involved in the
present allegation were received in 1997, and, therefore, are different
than those identified in the prior complaint, which were received in 1996.
These complaints reflect different incidents and therefore they do not
state the same claim. Accordingly, the agency's dismissal of allegation
2 was improper and is REVERSED. Allegation 2 is hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 2, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations