01A42219_r
08-11-2004
Elbert Hicks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elbert Hicks v. United States Postal Service
01A42219
August 11, 2004
.
Elbert Hicks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42219
Agency No. 4K-230-0011-04
DECISION
Complainant filed an appeal with this Commission on February 10, 2004 from
the agency's February 4, 2004 decision, dismissing his complaint pursuant
to 29 C.F.R. � 1614.107(a)(1) on the grounds that it stated the same claim
that was pending before the agency in the complaint filed by complainant
in Agency No. 4K-230-0144-03. The agency also dismissed the complaint
alternatively for failure to contact an EEO Counselor in a timely manner.
The agency defined the complaint as whether complainant was subjected
to discrimination on the bases of race (African-American), sex (male),
disability, and reprisal for prior EEO activity, when on October 21,
2003, he was denied the opportunity to apply for retirement benefits.
In its decision dismissing the complaint pursuant to 29 C.F.R. �
1614.107(a)(1), the agency stated that the present complaint states the
same claim that was raised in Agency No. 4K-230-0144-03. EEOC Regulation
29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss an
entire complaint that states the same claim that is pending before or
has been decided by the agency or Commission.
The Commission finds that the agency's decision dismissing the complaint
was proper. The record contains the agency's October 23, 2003 decision
in Agency No. 4K-230-0144-03. The claim is identified as whether
complainant was discriminated against when on or around June 4, 2003,
management failed to act on complainant's application which would
have allowed complainant to apply for reinstatement or retirement.
The Commission finds that the instant complaint states the same matter
as raised in Agency No. 4K-230-0144-03.
Accordingly, the agency's decision 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
August 11, 2004
__________________
Date