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:
_________________________