James D. Walker, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency

Equal Employment Opportunity CommissionSep 22, 1999
01983267 (E.E.O.C. Sep. 22, 1999)

01983267

09-22-1999

James D. Walker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency


James D. Walker v. United States Postal Service

01983267

September 22, 1999

James D. Walker, )

Appellant, )

) Appeal No. 01983267

v. ) Agency No. 4-H-320-0044-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency )

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning 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, and the Age Discrimination in Employment Act of 1967, as amended,

29 C.F.R. �621 et seq. Accordingly, the appeal is accepted in accordance

with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for stating the same claim that is pending before or has been

decided by the agency or Commission.

BACKGROUND

Appellant filed a formal complaint on December 26, 1997, alleging

discrimination on the basis of race (Native American), sex (male),

national origin (Chickamauga Cherokee), age (over 40) and reprisal (prior

EEO activity)<1> when on October 22, 1997, he was denied reinstatement

as a mailhandler at the Pensacola, Florida plant facility.

In a June 1988, agreement, appellant voluntarily resigned from the agency

and agreed to withdraw all pending appeals, and the agency agreed to

remove a Letter of Warning and Notice of Proposed Removal from appellant's

file and change his 1988 evaluation to a favorable rating. Appellant then

unsuccessfully applied for reinstatement in October 1989 and July 1990,

for reconsideration in January 1990, and for reinstatement in September

1991 and October 1991. The agency informed appellant he would never be

rehired. Appellant applied again unsuccessfully for rehire in May 1993,

and filed a formal complaint in November 1993, which was dismissed by

the agency for untimely EEO counselor contact. The Commission remanded

for supplemental investigation, and later affirmed. (James D. Walker

v. United States postal Service, EEOC Request 01951615 (September

8, 1995)). Appellant filed successive complaints alleging either

discrimination or breach of settlement agreement which were dismissed

by the agency and ultimately affirmed by the Commission.<2>

Appellant consolidated his allegations regarding his reinstatement

requests and filed suit in District Court. The Court found that

appellant's November 1993, complaint was untimely, that his May 1993,

reinstatement request was an attempt to revive stale claims, having

been informed in 1991 he would never be rehired, and that his settlement

agreement did not guarantee appellant a favorable reference. Appellant

filed additional complaints which the agency dismissed as stating the

same claim pending in a civil action or raised in a prior complaint.

The Commission affirmed these decisions.<3>

The agency dismissed the current complaint finding in its final decision

that appellant filed an identical complaint<4> on March 18, 1996.

On appeal, appellant argues that the agency failed to produce evidence

that his present re-hire request is identical to his prior reinstatement

request, and alleges that the agency breached a settlement agreement

dated June 20, 1988, entered into between the agency and appellant.

The agency argues that the Commission previously affirmed its dismissals

of appellant's allegations regarding reinstatement as having been

presented in his civil action.<5> The agency contends that the settlement

agreement was not breached and that appellant's allegations of breach

were also previously adjudicated.<6>

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

The record clearly indicates that the instant case is identical in

material respects to case No.4-H-320-1203-96, which was dismissed by the

agency for stating the same claim that was pending in a civil action.

The Commission affirmed that decision. Appellant can not reactivate a

claim merely by again requesting reinstatement/rehire.

CONCLUSION

Accordingly, the decision of the agency 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. 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

Sept. 22, 1999

________________________ _______________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations

1 Between July 1994, and November 1998, the Commission issued twenty

four decisions on appellant's allegations of discrimination and breach

of a settlement agreement involving appellant's repeated, unsuccessful

requests for reinstatement and reconsideration.

2 The Commission remanded some complaints for further investigation, then

later affirmed. See James D. Walker v. USPS, EEOC Request No 01943446

(July 14, 1994); James D. Walker v. USPS, EEOC Request No. 01944257

(October 4, 1994); James D. Walker v. USPS, EEOC Request No. 01943867

(March 7, 1995); James D. Walker v. USPS, EEOC Request No. 01951615

(September 8, 1995; James D. Walker v. USPS, EEOC Request No. 01954600

(February 7, 1996); James D. Walker v. USPS, EEOC Request No. 01954913

(February 20, 1996); James D. Walker v. USPS, EEOC Request No. 01961181

(May 31, 1996); James D. Walker v. USPS, EEOC Request No. 01961066

(February 18, 1997);James D. Walker v. USPS, EEOC Request No. 01965974

(June 17, 1997); James D. Walker v. USPS, EEOC Request No. 01962779

(April 2, 1998); James D. Walker v. USPS, EEOC Request No. 01980120

(July 28, 1998); James D. Walker v. USPS, EEOC Request No. 01980173 (July

28, 1998); james D. Walker v. USPS, EEOC Request No. 01980125 (July 28,

1998); James D. Walker v. USPS, EEOC Request No. 01980175 (July 28, 1998);

James D. Walker v. USPS, EEOC Request No. 01980107 (November 13, 1998).

3 See James D. Walker v. USPS, EEOC Request No. 01956454 (November 22,

996); James D. Walker v. USPS, EEOC Request No. 01970117 (January 22,

1997); James D. Walker v. USPS, EEOC Request No. 01965678 (April 3,

1997);James D. Walker v. USPS, EEOC Request No. 01971375 (April 3,

1997); James D. Walker v. USPS, EEOC Request No. 05960621 (May 31, 1997)

4 Case number 4-H-320-1203-96.

5 The Commission found that appellant's allegations regarding

reinstatement to the Pensacola facility and breach of a settlement

agreement were presented in his civil actions, JC-95-212 and JC-95-282,

and affirmed the agency's decision to dismiss on that basis.

6 In the 1997 District Court decision, the judge ruled that nothing

in the agreement guarenteed appellant a positive reference for future

employment.