o1a00552
02-27-2001
Louis Leibowitz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Louis Leibowitz v. United States Postal Service
01A00552
February 27, 2001
.
Louis Leibowitz,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 01A00552
Agency No. 4-A-105-0080-98
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated July 17, 1998, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of his religion (Jewish), and reprisal (prior EEO activity)
when, on March 31, 1998, he was told that in the future he would not be
scheduled to work.<1>
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. � 1614.107 (a)(1), for stating the same claim that had been
previously decided by the agency. Specifically, the agency determined
that complainant raised the same issue in a prior complaint. See
Leibowitz v. United States Postal Service, EEOC Appeal No. 01985688
(November 17, 1999). The agency argued that in his prior complaint,
complainant requested that he be returned to the route he previously
worked and that in the instant complaint, he was alleging that he was
denied placement on future work schedules. The agency noted that these
allegations were like or related, in that both involved complainant's
claim that he was denied �TRC duties.� <3>
EEOC Regulation 29 C.F.R. � 1614.107 (a) (1) 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. It has long been established that "identical" does not
mean "similar." The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident, and parties. See Jackson v. Department of the Air Force,
EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds EEOC
Request No. 05960524 (April 24, 1997).
In the present case, the record reflects that complainant alleged that
on March 31, 1998, he was informed by the Officer in Charge (OIC)
that he would not be scheduled to work a route in the Woodbourne
Post Office. Complainant alleged that OIC based her decision on his
religion and the fact that he filed a prior complaint against the
former Postmaster. The record reflects that complainant previously
raised similar claims that the former Postmaster did not schedule him
to work. However, the dates and the parties cited by complainant in
his prior complaint are not the same as those he cites in the case
at hand. Therefore, the matter raised in the instant complaint is not
identical to the claims raised in the prior complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint was not proper and the decision is REVERSED. The complaint
is hereby REMANDED for further processing in accordance with the Order
below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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
February 27, 2001
_______________________
Date
1Complainant referred to this as �future scheduling� in his complaint.
3This term is not defined in the record.