01994142
08-17-2000
Arthur J. Cox, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Arthur J. Cox v. United States Postal Service
01994142
August 17, 2000
.
Arthur J. Cox,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994142
Agency No. 1C-451-0049-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 24, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (White), sex (male), and in reprisal for prior
protected activity when:
On June 10, 1998, complainant was not allowed to return to work on
the workroom floor while he was in an open toe walking sandal and he
saw another clerk, Person A, on the workroom floor the whole week of
November 16-20, 1998, with the same type of open toe sandal.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)), for stating the
same claim that is pending before or has been decided by the agency or
Commission. Specifically, the agency stated that the matter raised in
the present complaint is �identical and arises from the same transaction�
as the matter raised in Agency Case No. 1C-451-0006-99.
On appeal, complainant states that the present complaint is different
from his previous complaint because this complaint is filed against,
Person A, a fellow white clerk who was allowed to come to work wearing
an open toe shoe while he was not allowed on the workroom floor with an
open toe shoe. Complainant claims that his previous complaint (Agency
Case No. 1C-451-0006-99) was not filed against the same white clerk.
The record contains a copy of the formal complaint filed in Agency
Case No. 1C-451-0006-99, in which complainant alleged that on June 10,
1998, he was not allowed to return to work due to wearing an open toe
walking cast.
Upon a review of the record, we find that the agency properly dismissed
complainant's complaint for stating the same claim that was pending
before or had been decided by the agency or Commission. Both complaints
concern complainant being denied the opportunity to return to work
on June 10, 1998, because he was wearing an open toe walking cast.
While complainant may have learned of an additional comparative, this
information could be evidence for his prior complaint, not a new issue.
As complainant raised this issue in his previous complaint, he cannot
raise the same issue again in the present complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 17, 2000
__________________
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
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.