01a05747
11-08-2000
Wayne Z. Jakubczak, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wayne Z. Jakubczak v. United States Postal Service
01A05747
November 8, 2000
.
Wayne Z. Jakubczak,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05747
Agency No. 1B-141-0016-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 27, 2000, dismissing his complaint of unlawful
employment discrimination.<1> In his complaint, complainant alleged that
he was subjected to discrimination in retaliation for prior EEO activity
when:
Complainant found written information in his Official Personnel Folder
(OPF) that was arrogant, racist, and stated that complainant knew
everything and was unable to learn.<2>
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim
that is pending before or has been decided by the agency or Commission.
Specifically, the agency claimed that complainant raised the same
matter in EEOC Appeal No. 01A01434 (Agency Case No. 4B-140-0106-99).<3>
Alternatively, the agency dismissed complainant's complaint pursuant to
the regulation set forth at 29 C.F.R. � 1614.107(a)(9), for misuse of the
EEO process. The agency claimed that complainant was using the present
complaint to resurrect a removal claim that was held to be untimely.
On appeal, complainant states that the agency should have contacted him if
his handwriting could not be read. Complainant states that the agency's
definition of his complaint was improper, but he does not explain what
issues he intended to raise in his complaint.
The record reveals that complainant filed a previous complaint under
Agency No. 4B-140-0106-99, in which he alleged that he was discriminated
against in reprisal for prior EEO activity when (1) after he alleged
that his removal was discriminatory, management falsified his Official
Personnel File (OPF) to support the removal, and (2) the EEO Counselor
improperly handled his EEO matters.
According to complainant's request for precomplaint counseling (PS
Form 2564-A) and the EEO Counselor's Inquiry Report, in the present
complaint, complainant alleged that on an unspecified date he found
written information in his OPF that was arrogant, racist, and stated that
he knew everything and was unable to learn. We note that on PS Form
2564-A, complainant refers to documents previously submitted to the EEO
office in connection with Agency Case No. 4B-140-0106-99 in support of
his present complaint. In addition, the Counselor's Report notes that
during the initial interview complainant acknowledged that this issue
had previously been raised in the EEO process.
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.
Upon review of the record we find that complainant's present complaint
was properly dismissed as raising the same matter that was previously
decided in Agency Case No. 4B-140-0106-99.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
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
November 8, 2000
__________________
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
______________________________
1On 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.
2Complainant filed a formal complaint on May 30, 3000, however, the claims
identified on the formal complaint form are illegible. The agency relied
on the information raised during EEO counseling to identify the claims
in the formal complaint. The Commission finds the agency's actions
appropriate and agrees with the agency's definition of the claims.
3The Commission affirmed the agency's dismissal of Agency Case
No. 4B-140-0106-99. Complainant filed a request for reconsideration, EEOC
Request No. 05A00827, which is currently pending before the Commission.