01A03369_r
06-21-2001
Phillip E. Sharpe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Phillip E. Sharpe v. United States Postal Service
01A03369
June 21, 2001
.
Phillip E. Sharpe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03369
Agency No. 1-D-271-0024-00
DECISION
Upon review, the Commission finds that the agency's decision dated March
10, 2000, dismissing complainant's complaint for stating the same claim
that had been decided by the agency is proper pursuant to 29 C.F.R. �
1614.107(a)(1). In the instant complaint, dated February 13, 2000,
complainant alleged discrimination based on race (Caucasian), age (40),
and disability (heart disease, hypertension, osteoarthritis of joints)
when: on March 10, 1999, three identified agency managerial officials
added duties to his job prior to requiring an African-American employee
to work duties on his job; and when it was decided to put pay location
230 excessing on hold, another African-American was not required to work
extra duties on his job.
The record indicates that on June 25, 1999, complainant previously filed
a formal complaint, Agency No. 1-D-271-0052-99, alleging, inter alia,
that on January 22, 1999, management held a meeting and informed the
employees in pay location 230 that they proposed to abolish or revert
jobs due to automation, and that the three jobs which included his
job would have relief duties added; and on March 10, 1999, he filed an
injury due to job related stress by over demands of being told he must
learn new job responsibilities. It is noted that on October 28, 1999,
the agency issued its decision dismissing the previous complaint which
was affirmed by the Commission, in Appeal No. 01A01441 (August 25, 2000).
Upon review, the Commission finds that complainant previously alleged
the same claims in his previous complaint regarding his assignment of
March 10, 1999, as a result of the proposed abolishment of jobs in pay
location 230, which were not actually abolished thereafter. On appeal,
complainant contends that the previous complaint involved the agency's
preferential treatment towards part-time clerks in associate offices
and the instant complaint involved the agency's preferential treatment
toward African-American employees concerning job assignments. It is
noted that complainant's new evidence which may or may not support the
alleged discriminatory incidents does not constitute an actionable claim
within the purview of the regulations.
Accordingly, the agency's decision is hereby AFFIRMED.<1>
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
June 21, 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
______________________________
1Although the agency also dismissed the complaint on alternative grounds,
we need not discuss such since the dismissal is affirmed for raising
the same claims as a prior matter.