01980378
10-20-1999
Roosevelt Knight, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roosevelt Knight, )
Appellant, )
)
v. ) Appeal No. 01980378
) Agency No. 4-H-320-0237-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The final decision was received by appellant
on September 22, 1997. The appeal was postmarked October 9, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
Appellant was a letter carrier in the North Florida District.
He initiated counseling on June 16, 1997, and filed an EEO complaint on
July 26, 1997, alleging discrimination based on race when on June 4,
1997, another employee had a confrontation with him and was not sent
for a fitness for duty exam or placed on leave without pay (LWOP).
The agency dismissed this complaint on the grounds that the complaint
stated the same claim that is pending before or has been decided by
the agency or Commission. 29 C.F.R. �1614.107(a). The agency stated
that appellant had filed an identical complaint on December 21, 1994,
(Case No. 4-H-320-1311-94), alleging that he was sent for a fitness
for duty exam on April 13, 1994, and subsequently placed on LWOP on
July 5, 1994, for having had a confrontation with another employee.
The agency asserted that it was improper for appellant to file a new
complaint because the discovery of a new comparative employee does not
give rise to a new claim.
.
EEOC regulation 29 C.F.R. �1614.107(a) requires the agency to dismiss a
complaint or a portion of a complaint that fails to state a claim under
�1614.103 or �1614.106(a) or states the same claim that is pending before
or has been decided by the agency or Commission.
The Commission has reviewed the record concerning the instant complaint
and the complaint dated December 21, 1994. The Commission finds that
the complaints allege the same claim. The Commission has interpreted the
above cited regulation to require that the complaint must set forth the
"identical matters" as contained in a previous complaint filed by the
same complainant, in order for the subsequent complaint to be rejected
(as stating the same claim). See Russell v. Department of the Army,
EEOC Request No. 05910613 (August 1, 1991). The Commission determines
that the matter addressed in the instant complaint, relating to agency
inaction against a co-worker of appellant, is the identical
action taken against appellant in the December 21, 1994 complaint.
Accordingly, the agency decision dismissing appellant's complaint was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations