Wayne Z. Jakubczak, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 2000
01a05747 (E.E.O.C. Nov. 8, 2000)

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.