01A01419
03-30-2001
James E. Clavin, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James E. Clavin, Jr. v. United States Postal Service
01A01419
March 30, 2001
.
James E. Clavin, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01419
Agency No. 1A-086-0015-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 3, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discriminatory harassment on the bases of sex
(male), national origin (Puerto Rican/Irish), disability (left knee
degenerative disease), and in reprisal for prior EEO activity in that:
In October-January, 1999, he was placed in a fixed schedule below 40
hours a week;
The agency had not answered a legitimate request for positions;
The agency had not honored a good faith meeting of May 26, 1998;
The agency did not acknowledge or lost documents;
The agency falsified statements;
The agency practiced coercion;
The agency misquoted or partially quoted regulations and documents;
The agency forced complainant into a position not needed or requested;
The agency abused its authority with delays and lack of response; and
Complainant submitted all pertinent documents but they have not been
acted upon.
The agency's decision dismissed claims (1), (2), and (8) for stating the
same claim as that previously before the agency, and claims (3), (4),
(5), (6), (7), (9), and (10), for failure to state a claim. The agency
determined that claims (1), (2), and (8) had been raised in previous
complaints regarding harassment and assignment of duties, and that
complainant had failed to show how he had been harmed with respect to
a term, condition, or privilege of employment by the remaining claims.
Additionally, in the alternative the agency dismissed all ten claims
because complainant was not counseled regarding the matters raised in
his formal complaint. Specifically, the agency determined that the only
issue raised with the EEO Counselor by complainant was that, on June 1,
1999, complainant was presented with a letter instructing him to request
light duty in writing and to provide medical documentation to support
that request.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint 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. A later claim or complaint is "like or related"
to the original complaint if the later claim 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 Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
Upon review of the record, we find that the agency properly dismissed
complainant's complaint. The record shows that during EEO counseling
for the instant complaint, complainant's only claim of discrimination was
that he was presented with a letter instructing him to request light duty
in writing and to provide medical documentation to support his request.
As such, the above listed claims in complainant's formal complaint were
clearly not the subject of counseling with complainant's EEO Counselor.
Moreover, there is no indication in the record that complainant's claims
are like or related to the matter on which the complainant received
counseling. Complainant failed to provide any evidence to show how
the claims asserted in his formal complaint are related to the matter
presented to the EEO Counselor. Therefore, we find that complainant's
complaint was properly dismissed under 29 C.F.R. � 1614.107(a)(2).<1>
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 As we find that complainant's complaint was properly dismissed under
29 C.F.R. � 1614.107(a)(2), we do not address the agency's other bases
for dismissal of complainant's claims. We note however, that the record
indicates that previous claims concerning the same facts and circumstances
as complainant's claims (1) and (8) were accepted for investigation by
letter dated April 15, 1999 (Agency No. 4A-0888-0010-99).