01a43848
09-13-2005
Steven Schwartz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven Schwartz v. United States Postal Service
01A43848
9/13/2005
.
Steven Schwartz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43848
Agency No. 4H-320-0053-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 20, 2004, dismissing his formal EEO complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
Complainant initiated EEO Counselor contact on March 15, 2004.
Informal efforts to resolve his concerns were unsuccessful. In his
formal complaint, dated April 13, 2004, complainant claimed that he
was subjected to discrimination on the basis of disability.
In its final decision dated April 20, 2004, the agency determined that
complainant's formal complaint was comprised of the following claim:
on February 20, 2004, [complainant] received another notice that [his]
request for a transfer to the North Florida District was denied.
The agency dismissed complainant's complaint on the grounds of
untimely EEO Counselor contact. Specifically, the agency stated that
it initially denied complainant's request for a transfer to the North
Florida District in August 2003. In addition, the agency asserted that
the time limit for contacting an EEO Counselor begins with the initial
denial of complainant's request for a transfer. In its final decision,
the agency also stated that complainant filed a prior EEO complaint
(identified as Agency Case No. 4H-320-0174-03), regarding the agency's
August 2003 denial, which was accepted for investigation and is currently
before an EEOC Administrative Judge.
The regulation set forth at 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.
While the agency dismissed complainant's complaint on the grounds of
untimely EEO Counselor contact, we find this matter is more properly
analyzed in terms of whether it states the same claim that is pending
before the agency or Commission. The record contains a copy of a letter
from the agency to complainant dated October 14, 2003. Therein, the
agency states that it is accepting for investigation an EEO complaint
filed by complainant on October 7, 2003, identified as Agency Case
No. 4H-320-0174-03. The agency in its October 14, 2003 acceptance letter
defined complainant's claims as follows: �on August 15, 2003 and August
[29], 2003, [complainant's] request to transfer to the North Florida
District was denied.�
A fair reading of the record reflects that the instant complaint is
merely a reiteration of a claim relating to the agency's denial of
complainant's reasonable accommodation request (a transfer to the North
Florida District), which was the subject of his prior EEO complaint
(Agency Case No. 4H-320-0174-03). Specifically, the record contains
a letter from complainant to the agency's Human Resources Manager
(HRM) for the North Florida District dated July 7, 2003. Therein,
complainant requested a transfer due to an on-the-job injury and his
medical restrictions. By letter to complainant dated August 15, 2003,
the agency stated that complainant's transfer request was denied due to
his safety record and informed him that he could request reconsideration
of the agency's decision. By letter dated August 25, 2003, complainant
requested reconsideration of the agency's decision. The agency replied
via letter dated August 29, 2003, upholding its initial denial of
complainant's request for a transfer.
By letter dated February 17, 2004, complainant initiated another request
to HRM for a transfer. In response, the agency denied the request via
letter on February 19, 2004. Therein, the agency states, �[a]s you are
well aware, your request for a transfer to North Florida was denied...You
requested reconsideration of the decision to deny you a transfer, and by
letter dated August 29, 2003, you were advised again that your request
was denied. There is no legitimate reason for you to badger the Human
Resources personnel in North Florida with your repeated demands for
a transfer. Your request has been denied.�
Based on the foregoing, we find that the instant complaint states the
same claim as complainant's prior EEO complaint, identified as Agency
Case No. 4H-320-0174-03.
Accordingly, the Commission AFFIRMS the agency's final decision dismissing
complainant's complaint.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
9/13/2005
Date
1Because we affirm the agency's dismissal of
complainant's complaint for the reasons stated herein, we need not address
the agency's dismissal on the grounds of untimely EEO Counselor contact.