Jimmy Leong, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 26, 2003
01A30980_r (E.E.O.C. Mar. 26, 2003)

01A30980_r

03-26-2003

Jimmy Leong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jimmy Leong v. United States Postal Service

01A30980

March 26, 2003

.

Jimmy Leong,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30980

Agency No. 1-F-942-0025-02

DECISION

Complainant appealed to this Commission from the agency's October 21,

2002 dismissal of his employment discrimination complaint. In his

complaint, complainant alleged discrimination on the basis of disability

(schitzotypal personality disorder) when he was mistreated from 1991

through his removal on January 28, 1999.

The agency dismissed the complaint for alleging the same matter raised

in a prior complaint. Alternatively, the agency dismissed the complaint

for untimely counselor contact. On appeal, complainant argues, through

his attorney, that the prior complaint is not identical, because it did

not allege the basis of disability. Complainant asserts that he was not

aware of his disability until it was diagnosed and explained to him on

June 17, 2002, but the agency should have been aware of it given their

Employee Assistance Counseling sessions with him.

The agency may dismiss complaints alleging harm from the same matters

previously raised. 29 C.F.R. � 1614.107(a)(1). Complainant clearly

alleged discrimination from his removal on the bases of race, color,

national origin, sex, religion, and age in a prior complaint. This

complaint was decided by an EEOC Administrative Judge, and appealed to

this Commission in EEOC Appeal No. 01A03781. The Commission affirmed

the AJ's finding of no discrimination. Leong v. United States Postal

Service, EEOC Appeal No. 01A03781 (Feb. 8, 2001), req. to recons. den.,

EEOC Request No. 05A10378 (Jun. 12, 2001).

Complainant's substitution of a new basis does not resurrect his claims.

Complainant �learned� of his diagnosis when his current attorney referred

him to a psychiatrist. Complainant was represented by an attorney,

albeit different counsel, for the hearing in his original complaint.

Complainant's last chance agreement outlined complainant's psychiatric

care responsibilities, but his attorney never attempted to amend the

complaint to add the basis of disability. Therefore, the Commission

rejects his argument that his psychiatric difficulties are a newly found

basis as disingenuous. Regardless, it would not justify a new complaint

concerning the same incidents previously reviewed; the incidents of

his complaint are identical to those previously filed. Accordingly,

the agency's dismissal is AFFIRMED.<1>

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 26, 2003

__________________

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

______________________________

1Since the Commission is affirming the agency's same claim dismissal,

we will not address the agency's alternative grounds for dismissal,

i.e., untimely counselor contact.