Zedie E. Ramage, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01977032 (E.E.O.C. Jan. 21, 1999)

01977032

01-21-1999

Zedie E. Ramage, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Zedie E. Ramage, Jr. v. United States Postal Service

01977032

January 21, 1999

Zedie E. Ramage, Jr., )

Appellant, )

)

v. ) Appeal No. 01977032

) Agency No. 1F-937-0023-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

______________________________)

DECISION

Based on a review of the record, the Commission AFFIRMS, as MODIFIED,

the agency's dismissal of this complaint.<1> In the instant complaint,

appellant alleged that he was discriminated against on the bases of

race (White), color (white), national origin (German/French/American),

age (42), and reprisal (prior EEO activity) when on December 23, 1996,

the agency denied him official time to meet with an employee regarding

an EEO matter at another facility. Here, the agency issued a final

decision (FAD) dismissing appellant's complaint for stating a claim

that was previously decided by the Commission in Schneider v. United

States Postal Service, EEOC No. 370-94-X2258, Agency No. 4F-950-1076-97

(September 25, 1996).

In order for an agency to properly dismiss an allegation for raising the

same claim as a previously decided complaint, the rejected allegation must

set forth "identical matters" as those contained in the prior complaint.

Terhune v. United States Postal Service, EEOC Request No. 05950907

(July 18, 1997). In order to determine whether a formal complaint

presents "identical matters" as a prior complaint, three elements of

the complaint are reviewed: (1) the date of the most recent event;

(2) the prohibited bases alleged; and (3) the facts which resulted in

the alleged discrimination. Jordan v. Department of the Treasury, EEOC

Request No. 01964461 (June 10, 1997). Additionally, the complainant

must be the same in each case. Nelson v. United States Postal Service,

EEOC Request No. 01904019 (November 2, 1990). This complaint, however,

involves a different complainant and a different event than the previously

decided case. Therefore, appellant has not stated the same claim that

had been previously decided.

We find, nevertheless, that pursuant to the Commission's decision in

Sessoms v. United States Postal Service, EEOC Appeal No. 01973440 (June

11, 1998), appellant lacks standing to bring an EEO complaint that he was

denied official time. Such a claim lies with the complainant, and not his

or her representative. Id. Accordingly, we AFFIRM the FAD as MODIFIED,

holding that appellant's appeal respecting the denial of official time

is dismissed on the procedural ground that he lacks standing to bring

such a claim.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

Jan 21, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 This decision is being issued in conjunction with two related appeals:

Ramage v. United States Postal Service, EEOC Appeal No. 01984981 and

Schneider v. United States Postal Service, EEOC Appeal No. 01974464.