01A34667_r
12-16-2003
Wendell P. Tyler v. United States Postal Service
01A34667
December 16, 2003
.
Wendell P. Tyler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34667
Agency No. 4J-604-0032-03
DECISION
On January 10, 2003, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his race
(Black), disability (brain tumor/misdiagnosis), and in reprisal for his
previous EEO activity under Title VII and the Rehabilitation Act when:
1. On November 2, 1999, he received a letter stating that it was not
appropriate for him to request reconsideration of his separation from
employment in 1994.
2. On December 27, 1993, an agency physician scheduled him for a
psychiatric examination and never responded to complainant's inquiry
about it.
3. On May 30, 2000, the Postmaster informed complainant that Handbook
EL�806, Section 152.3 applied to him.
By decision dated January 23, 2003, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
requested EEO counseling on June 2, 2000, more than 45 days after he had
been discriminated against. The agency also dismissed the complaint
on the grounds that it stated the same claim that is pending or has
previously been decided by the agency or the Commission. According to the
agency, the claims raised in the instant complaint have been previously
decided by the agency or the Commission or are presently pending before
the Commission.
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. Generally, a
complaint concerning a request for reinstatement states the same claim
as prior complaints involving requests for reinstatement. See Price
v. Department of the Navy, EEOC Appeal No. 01973867 (July 9, 1998)
(second request for reinstatement does not give rise to a new claim).
However, when complainant's circumstances have changed since his previous
request such that he would expect a different result, the subsequent
reinstatement request may involve a separate, cognizable claim. See Lopez
v. United States Postal Service, EEOC Appeal No. 01976459 (January 7,
1999) (finding subsequent request for reinstatement involved the same
claim because the claimant's circumstances have not changed).
With regard to claim (1), we observe that this claim concerns complainant
being denied on November 2, 1999, the ability to challenge his separation
from employment in 1994. In effect, complainant seeks through this
claim to be reinstated to employment with the agency. In Tyler
v. United States Postal Service, EEOC Appeal No. 01A02261 (July 19,
2000), complainant filed a complaint claiming discrimination on the
same bases as that in the instant complaint when he was not reinstated
on April 20, 1999 and September 28, 1999. The record indicates that
complainant was placed on the reinstatement roster on December 21, 1998,
when complainant provided the agency with evidence that his psychiatric
illness had been a misdiagnosis. The agency was informed in a letter
from complainant's physician dated July 8, 1999, that complainant was
not psychologically ill and that his psychotic symptoms had been resolved
through the removal of a large, benign brain tumor. We find that claim
(1) of the instant complaint involves the same matter as that in EEOC
Appeal No. 01A02261 given that the circumstances and expectations
in these requests for reinstatement were the same. Accordingly, the
agency's dismissal of claim (1) was proper.<1>
As for claim (2), we find that this matter was not brought to the
attention of an EEO Counselor in a timely manner pursuant to 29
C.F.R. �1614.107(a)(2). Complainant's contact of an EEO Counselor on
June 2, 2000, regarding the 1993 incident, was clearly beyond the 45-day
time limit for contacting an EEO Counselor. Accordingly, the agency's
dismissal of claim (2) was proper.<2>
With regard to claim (3), complainant claims that by letter dated May 30,
2000, the Postmaster informed him that Handbook ELM-806, Section 152.3
applies to him. We observe that the letter at issue states that Section
152.3 applies to any applicant and/or current employee. Section 152.3
states that �When the applicant has no prior employment or lacks a
satisfactory employment history subsequent to psychiatric illness,
the degree of recovery must be evaluated on the basis of a recent
psychiatric examination. If this is unavailable, the applicant must
submit to an examination. Applicants with a history of mental illness
are restricted from positions requiring the possible use of firearms or
contact with the public.� It is evident that complainant is challenging
this provision because he believes that it is adversely affecting his
chances of being reinstated. This claim therefore states the same claim
as that in EEOC Appeal No. 01A02261, wherein complainant claimed that
he had been denied reinstatement. Accordingly, the agency's decision
dismissing claim (3) of complainant's complaint was proper pursuant to
29 C.F.R. � 1614.107(a)(1).<3>
The agency's decision dismissing the 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
December 16, 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
______________________________
1In light of our affirmance of the agency decision on this grounds,
we need not address the agency's alternative grounds for dismissal.
2In light of our affirmance of the agency decision on this grounds,
we need not address the agency's alternative grounds for dismissal.
3In light of our affirmance of the agency decision on this grounds,
we need not address the agency's alternative grounds for dismissal.