Dennis Schneider, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01992164 (E.E.O.C. Nov. 18, 1999)

01992164

11-18-1999

Dennis Schneider, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dennis Schneider, )

Complainant, )

)

v. ) Appeal No. 01992164

) Agency No. 4-F-950-0186-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's January 19, 1999 decision

dismissing Complainant's complaint on the grounds that it raises the

same claim previously decided by the agency or the Commission, is proper

pursuant to the provisions of 29 C.F.R. �1614.107(a)(1).

The record shows that on July 25, 1997, Complainant filed a formal

complaint of discrimination alleging that he had been discriminated

against on the basis of reprisal when, from May 7, 1998 through June

17, 1998, he was not allowed to represent complainants at the Milpitas

Post Office.

The record shows that on two prior instances, Complainant had raised

the issue of not being allowed to represent employees outside the San

Jose office. In Agency Case No. 4-F-950-1076-95, filed on February 13,

1995, Complainant alleged that on January 3, 1995, he had been denied

time on-the-clock to meet with an employee in an associate post office

regarding an EEO case. The complaint was accepted for investigation and

after the administrative judge (AJ) issued a recommended decision without

a hearing finding no discrimination, the agency accepted and adopted

the AJ's recommended decision. In Agency Case No. 4-F-950-0111-97,

filed on January 30, 1997, Complainant alleged that he had been

discriminated against on the basis of reprisal when on December 23,

1996, he received instructions indicating that he would not be granted

official time while representing non-San Jose employees in EEO complaints.

The agency dismissed Complainant's formal complaint pursuant to 29

C.F.R. �1614.107(a).

A review of the record shows that Complainant raised the same matter

of the instant complaint twice: Agency Case Number 4-F-950-1076-95 and

Agency Case Number 4-F-950-0111-97. Accordingly, the instant complaint

was properly dismissed and the final agency decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

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 consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (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:

November 18, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________