Roosevelt Knight, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01980378 (E.E.O.C. Oct. 20, 1999)

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