William D. Martin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01a00783 (E.E.O.C. Mar. 7, 2000)

01a00783

03-07-2000

William D. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.


William D. Martin, )

Complainant, )

)

v. ) Appeal No. 01A00783

) Agency No. 1H-302-0015-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas) )

Agency. )

____________________________________)

DECISION

On October 20, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to his complaint

of unlawful employment discrimination in violation of the Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791, et seq.<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of race (Caucasian),

age (49) and physical disability(left foot impairment), when, for the

past three years he has been performing higher level work (operating a

forklift), but has only been paid at the level 4 rate. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the Commission AFFIRMS the agency's final decision.<2>

Complainant alleged in his complaint that he works as a forklift operator,

which is a pay level 5 position. He claims, however, that for the past

three years, he has only been paid at pay level 4. The EEO Counselor's

report also indicates that an interview could not be held with complainant

within the thirty day time limit, and complainant refused to extend the

time limits.

On September 22, 1999, the agency dismissed the complaint pursuant to

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited

as 29 C.F.R. � 1614.107(a)(1)), since complainant alleged the same claim

in a prior complaint, 1H-302-0012-99.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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. After a

review of the record, including complainant's prior complaint, Agency

No. 1H-302-0012-99, we find the two claims are identical and AFFIRM the

agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 7, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

Equal Employment Assistant

__________________________

DATE1On 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.

2The Commission takes notice that complainant filed at least thirteen

complaints on the same day. The Commission cautions complainant that

it retains the right to protect its processes and procedures from

misuse and abuse. However, at present, the Commission will not find

that complainant is abusing its processes. See Kessinger v. USPS, EEOC

Request No. 05970408 (May 30, 1997); Kleinman v. USPS, EEOC Request

No. 05940579 et al. (September 22, 1994); Hooks v. USPS, EEOC Appeal

No. 01953852 et al. (November 28, 1995).