01975723
10-22-1998
James A. Manzano, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James A. Manzano, Jr., )
Appellant, )
)
v. ) Appeal No. 01975723
) Agency No. 1A-126-0020-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed one allegation in appellant's complaint, pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for raising a matter that was not
brought to the attention of an EEO Counselor and was not like or related
to a matter that was brought to the attention of an EEO Counselor.
Appellant alleged that he was subjected to discrimination on the bases
of national origin (Hispanic) and in reprisal for prior EEO activity when:
On October 1, 1996, appellant was issued a 14-day suspension for failing
to properly perform the duties of his position and sleeping while on
the clock; and
From May 1996, appellant has been continuously harassed.
On June 24, 1997, the agency issued a final decision accepting allegation
(1) for investigation, and dismissing allegation (2), pursuant to 29
C.F.R. �1614.107(b).
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that an
agency shall dismiss a complaint or portion thereof which raises a matter
that has not been brought to the attention of an EEO Counselor, and is
not like or related to a matter on which the complainant has received
counseling. The EEOC Regulations further direct an EEO Counselor to
inform a complainant that only matters related thereto may be raised in
a subsequent complaint filed with the agency. 29 C.F.R. �1614.105(b).
A later allegation or complaint is "like or related" to the original
complaint if the later allegation or complaint adds to or clarifies
the original complaint and could have reasonably been expected to grow
out of the original complaint during the investigation. See Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990); Webber v. Department of Health and Human Services, EEOC Appeal
No. 01900902 (February 28, 1990).
After careful review of the record and consideration of all submissions
on appeal, we find no evidence suggesting that appellant raised the
issue of continuous harassment during counseling. Additionally, we find
that the subject matter of the two allegations are such that allegation
(2) does not clarify allegation (1) and could not have reasonably been
expected to grow out of the original complaint during the investigation.
Allegation (1) concerned a specific identifiable event, whereas allegation
(2) concerned an unidentified pattern of harassment. Accordingly,
the agency's final decision dismissing allegation (2) 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:
Oct. 22, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations