01993370
11-05-1999
Ira Malmed, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.), Agency.
Ira Malmed, )
Appellant, )
)
v. ) Appeal No. 01993370
) Agency No. 1-G-771-0041-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W.), Agency. )
______________________________)
DECISION
On March 19, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on March 15, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.
The record reflects that on January 19, 1999 appellant initiated contact
with an EEO Counselor. During the counseling period, appellant alleged
that he was being discriminated against when; (1) his co-worker was
permitted to remain acting supervisor, (2)the plant manager refused to
talk to him and (3) management refused to consider his transfer request.
Counseling failed and on February 17, 1999, the agency received
appellant's formal complaint. Therein, appellant alleges that he was
the victim of unlawful employment discrimination on the basis of race
(Caucasian), religion (Jewish) and retaliation (prior EEO activity).
Appellant's complaint was comprised of the matters for which he underwent
EEO counseling, discussed above.
The agency, on March 12, 1999, issued a final decision dismissing
appellant's complaint for stating claims that are pending before
the agency. The agency found that the instant complaint raised the same
claims as those asserted in complaint 1-G-771-0026-99 filed on January
12, 1999. It is from this decision that appellant appeals.
The agency in their final decision dismissed the above complaint because
the same claims are currently pending before the agency. Pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion there of, that states the same claim
that is pending before or has been decided by the agency or Commission.
Here, the record is clear that the matters alleged in the instant
complaint are identical to those raised in complaint 1-G-771-0026-99.
Therefore, the agency's decision to dismiss the above complaint pursuant
to 29 C.F.R. � 1614.107(a) was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you
receive a timely request to reconsider filed by another party.
Any argument in opposition to the request to reconsider or cross request
to reconsider MUST be submitted to the Commission and to the requesting
party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the
request to reconsider. See 29 C.F.R. �1614.407. All requests and
arguments must bear proof of postmark and 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 filed on the date
it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 to consult an attorney concerning the
applicable time period in the jurisdiction in which your action would
be filed. In the alternative, you may file a civil action AFTER ONE
HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you
filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations