01a02150
05-24-2000
Elbert Hicks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elbert Hicks, )
Complainant, )
)
v. ) Appeal No. 01A02150
William J. Henderson, ) Agency No. 4-K-210-0173-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On January 12, 2000, complainant filed a timely appeal with this
Commission from an agency decision dated January 5, 2000, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Black), sex (male), age (51), physical disability (back injury),
and in retaliation for prior EEO activity when:
A June 29, 1999 letter sent by complainant to the Manager of Human
Resources, in which complainant applied for restoration to duty, has
gone unanswered.
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 referred to as 29 C.F.R. �1614.107(a)(1)), for stating the
same claim that has been decided by or is pending before the agency or the
Commission. Specifically, the agency stated that the present complaint
is like or related and arises from the same transaction as the matter
raised in Agency Case No. 1-K-211-0122-98, for which the agency issued
a decision on November 18, 1998, and from which complainant appealed
to the Commission (EEOC Appeal No. 01991525). In addition, 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
referred to as 29 C.F.R. � 1614.107(a)(7)), for failure to cooperate.
Specifically, the agency stated that it asked complainant to produce
a copy of the cited June 29, 1999 letter and claimed that complainant
failed to provide the requested letter.
The record reveals that complainant previously filed an EEO complaint
on September 23, 1998, claiming that he was discriminated against when
among other things, the agency failed to address complainant's requests
to be restored to duty in his local area. In both the 1998 complaint and
in the present complaint, complainant requested restoration to his local
community area of Ceiba, Puerto Rico. In Agency Case No. 1-K-211-0122-98,
the agency issued a final decision dismissing the issue of complainant's
restoration request on the grounds that it was untimely raised before
an EEO Counselor and in the alternative that it stated the same issue
previously decided by the Merit Systems Protection Board (MSPB) in
a September 30, 1999 decision ( MSPB Docket No. PH-0353-98-0439-I-1).
The Commission affirmed the agency's dismissal of complainant's complaint
in EEOC Appeal No. 01991525 (January 10, 2000). We find that the present
complaint involves the same matters previously decided by both the agency
and the Commission.
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:
May 24, 2000
____________________________
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:
_______________ __________________________
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.