01A23389_r
07-02-2003
Steven G. Constable, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven G. Constable v. United States Postal Service
01A23389
July 2, 2003
.
Steven G. Constable,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23389
Agency No. 4B-120-0041-02
DECISION
Complainant appeals to the Commission from the agency's decision dated
May 29, 2002, dismissing his complaint of discrimination for stating a
claim already pending before the agency in an earlier complaint. In a
complaint dated May 16, 2002, complainant alleged that, throughout April
and May of 2002, the agency discriminated against him on the basis of age
(49) and retaliated against him for filing previous EEO complaints by
continuing to deny him opportunities to serve as an Acting Supervisor
(204B) or as the Officer-in-Charge (OIC). In its decision dismissing
the complaint, the agency determined that complainant had raised the
issue of being denied 204B and OIC assignments in two other complaints:
4B-120-0114-01 and 4B-120-0061-00.
An agency must dismiss a complaint that states a claim that is pending
before it, or before the Commission. 29 C.F.R. � 1614.107(a)(1).
On August 6, 2001, complainant filed Complaint No. 4B-120-0114-01, in
which he claimed that the agency retaliated against him for previous
EEO activity by denying him a 204B training since, �January 1, 2002 and
continuing.� In Complaint No. 4B-120-0061-00, filed on September 15, 2000,
complainant alleged that he had been denied opportunities to serve as a
204B and OIC since �July 1, 2000, and continuing.� In both complaints,
complainant is raising the same claim, namely the agency's ongoing failure
to grant him an opportunity to serve in an acting supervisory capacity.
Complainant has not identified any specific circumstances that distinguish
the incidents raised in the instant complaint from those raised in the
two previous complaints. The Commission therefore finds, as did the
agency, that complainants claim regarding failure to be selected for 204B
vacancies is the same claim that he raised in complaints 4B-120-0114-01
and 4B-120-0061-00.
Accordingly, the agency's final 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
July 2, 2003
__________________
Date