Marty Lecompte, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01993313 (E.E.O.C. Aug. 28, 2000)

01993313

08-28-2000

Marty Lecompte, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Marty Lecompte v. United States Postal Service

01993313

August 28, 2000

Marty Lecompte, )

Complainant, )

) Appeal No. 01993313

) Agency No. 1H-336-0028-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Complainant filed an appeal with this 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 U.S.C. � 621 et seq.<1> The final agency decision

was dated February 18, 1999, and received by complainant on February

22, 1999. The appeal was postmarked on March 16, 1999. Accordingly,

the appeal is timely (see 29 C.F.R. � 1614.402(a)), and is accepted in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405).

ISSUE PRESENTED

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

complaint for stating the same claim as a previously filed complaint.

BACKGROUND

Complainant filed a formal complaint on October 8, 1998, alleging

discrimination on the bases of race (Asian-American), sex (male) and

age (DOB: 4/18/58) when he was issued a Notice of Removal on August 31,

1998, effective October 9, 1998.

In its final agency decision, the agency dismissed the complaint

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

decided by the agency. It found that complainant had filed the identical

complaint in agency complaint number 1H-336-0002-99, regarding the August

31, 1998, Notice of Removal. This appeal followed.

ANALYSIS AND FINDINGS

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides

that the agency shall dismiss 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). We find that complainant's complaint in the instant case

is the same claim as the complaint previously filed by him regarding

the August 31, 1998, Notice of Removal. A review of the record finds no

difference in the substance of complainant's separately filed claims that

he was discriminatorily issued a Notice of Removal, and that the claim is

being processed by the agency through the previously filed complaint.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

__08-28-00_______ __________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.