Wendell P. Tyler, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 16, 2003
01A34667_r (E.E.O.C. Dec. 16, 2003)

01A34667_r

12-16-2003

Wendell P. Tyler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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.