01A15020
03-06-2003
James E. Fuller, II, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
James E. Fuller II v. United States Postal Service
01A15020
March 6, 2003
.
James E. Fuller, II,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A15020
Agency No. 1G-771-0051-01
DECISION
On August 20, 2001, complainant filed an appeal from a final decision
issued by the agency on July 16, 2001, concerning 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.<1> In its decision, the agency described complainant's complaint
as alleging that he was discriminated against in retaliation for
prior EEO activity when, upon his return to duty on December 4, 2000,
complainant saw a document that indicated that he had been charged with
five counts of absence without official leave (AWOL), and the Manager,
Distribution Operations (MDO) made comments about complainant's injury.
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission finds that the instant complaint is properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1), albeit for different reasons
than those advanced by the agency in its decision. We determine that
complainant's complaint in Agency Number 1G-771-0051-01, states
the same claim that is pending before or has been decided by the agency
or Commission in Agency Number 1G-771-0160-00, Appeal Number 01A32144.
The final agency decision in Agency Number 1G-771-0051-01 was issued on
July 16, 2001. In complainant's Opposition to Decision Without a Hearing
for Agency Number 1G-771-0160-00, dated June 27, 2002, complainant informs
the EEOC Administrative Judge (AJ) that Agency Number 1-G-771-0051-01
and Agency Number 1G-771-0160-00, have been combined. On August 15,
2002, the AJ issued an order accepting the amendments to the complaint
in Agency Number 1G-771-0160-00, which the Commission deduces from the
records, includes the claims contained in Agency Number 1G-771-0051-01,
and the claims raised in Complainant's Amended Motion to Amend Complaint,
dated August 8, 2002. Pursuant to 29 C.F.R. � 1614.606, an AJ may, in his
or her discretion, consolidate two or more complaints of discrimination
filed by the same complainant. The consolidation of the complaints in
Agency Number 1G-771-0051-01 and Agency Number 1G-771-0160-00 occurred,
however, after the agency had already dismissed the complaint in Agency
Number 1G-771-0051-01 on procedural grounds. Therefore, the complaint
in Agency Number 1G-771-0051-01 was essentially adjudicated for a
second time, by the AJ and the agency, when it was consolidated with
the complaint in Agency Number 1G-771-0160-00.<2> As a result of the
consolidation, the claims raised in Agency Number 1G-771-0051-01, are
currently on appeal to the Commission through complainant's appeal of
the agency's October 8, 2002 decision in Agency Number 1G-771-0160-00,
which has been docketed as Appeal Number 01A32144.
As a result of the situation described above, the complaint in Agency
Number 1G-771-0051-01 states the same claim that is pending before or has
been decided by the agency or Commission in Agency Number 1G-771-0160-00.
Therefore, the agency's decision dismissing complainant's complaint in
Agency Number 1G-771-0051-01 is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 6, 2003
__________________
Date
1We note that the Commission originally
docketed Appeal Number 01A15020 to correspond to Agency Number
1G-771-0160-00. This docketing occurred in error. Appeal Number
01A15020 properly corresponds to complainant's appeal of the final
agency decision in Agency Number 1G-771-0051-01. Complainant's appeal
of the agency's notice of final action in Agency Number 1G-771-0160-00,
has been re-docketed as Appeal Number 01A32144. The Commission will
issue a separate decision for Appeal Number 01A32144.
2We do not consider at this time, complainant's argument in Appeal Number
01A32144, Agency Number 1G-771-0160-00, that the AJ failed to include
one of the claims from the consolidated complaint, in her decision.
That issue will be considered when the Commission adjudicates Appeal
Number 01A32144.