01977032
01-21-1999
Zedie E. Ramage, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Zedie E. Ramage, Jr. v. United States Postal Service
01977032
January 21, 1999
Zedie E. Ramage, Jr., )
Appellant, )
)
v. ) Appeal No. 01977032
) Agency No. 1F-937-0023-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
Based on a review of the record, the Commission AFFIRMS, as MODIFIED,
the agency's dismissal of this complaint.<1> In the instant complaint,
appellant alleged that he was discriminated against on the bases of
race (White), color (white), national origin (German/French/American),
age (42), and reprisal (prior EEO activity) when on December 23, 1996,
the agency denied him official time to meet with an employee regarding
an EEO matter at another facility. Here, the agency issued a final
decision (FAD) dismissing appellant's complaint for stating a claim
that was previously decided by the Commission in Schneider v. United
States Postal Service, EEOC No. 370-94-X2258, Agency No. 4F-950-1076-97
(September 25, 1996).
In order for an agency to properly dismiss an allegation for raising the
same claim as a previously decided complaint, the rejected allegation must
set forth "identical matters" as those contained in the prior complaint.
Terhune v. United States Postal Service, EEOC Request No. 05950907
(July 18, 1997). In order to determine whether a formal complaint
presents "identical matters" as a prior complaint, three elements of
the complaint are reviewed: (1) the date of the most recent event;
(2) the prohibited bases alleged; and (3) the facts which resulted in
the alleged discrimination. Jordan v. Department of the Treasury, EEOC
Request No. 01964461 (June 10, 1997). Additionally, the complainant
must be the same in each case. Nelson v. United States Postal Service,
EEOC Request No. 01904019 (November 2, 1990). This complaint, however,
involves a different complainant and a different event than the previously
decided case. Therefore, appellant has not stated the same claim that
had been previously decided.
We find, nevertheless, that pursuant to the Commission's decision in
Sessoms v. United States Postal Service, EEOC Appeal No. 01973440 (June
11, 1998), appellant lacks standing to bring an EEO complaint that he was
denied official time. Such a claim lies with the complainant, and not his
or her representative. Id. Accordingly, we AFFIRM the FAD as MODIFIED,
holding that appellant's appeal respecting the denial of official time
is dismissed on the procedural ground that he lacks standing to bring
such a claim.
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 (S0993)
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:
Jan 21, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 This decision is being issued in conjunction with two related appeals:
Ramage v. United States Postal Service, EEOC Appeal No. 01984981 and
Schneider v. United States Postal Service, EEOC Appeal No. 01974464.