01985917
08-17-2000
Annie L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Annie L. Herling v. United States Postal Service
01985917
August 17, 2000
.
Annie L. Herling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01985917
Agency No. 1-J-603-0022-98
DECISION
On July 24, 1998, complainant filed an appeal with this Commission from
an agency decision pertaining to her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on sex and retaliation. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, on April 13, 1998, complainant
filed a formal complaint. The agency framed the complaint as follows:
On September 15, 1997, complainant was harassed and treated differently
compared to others regarding complainant's PS Form 3189, Request for
Temporary Schedule.
On May 27, 1998, the agency issued a decision dismissing the complaint
on the grounds that it stated the same claim that is pending before
the agency. Specifically, the agency determined that the matter was
accepted for investigation in Case No. 1-J-603-0021-98.
On appeal, complainant argues that the issues in the instant case are not
the same as those raised in Case No. 1-J-603-0021-98, although �they are
indirectly related to and a result of the issues raised in [that case].�
According to complainant, Case No. 1-J-603-0021-98 concerned Person A,
while the instant case relates to the conduct of the Acting Manager
Distribution Operations.
The regulation set forth at 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.
The record contains a copy of an agency letter, dated May 29, 1998,
accepting Case 1-J-603-0021-98 for investigation. The letter sets forth
the claims as: (1) harassed by Acting Supervisor and (2) harassed and
treated differently regarding PS Form 3189. The second claim in Case
1-J-603-0021-98 addresses the same matter at issue in the instant case.
We note that the date of incident in Case 1-J-603-0021-98 is September
9, 1997, while the event in this case allegedly occurred on September
15, 1997. However, the Counselor's Report and the formal complaint, for
the instant case, indicate that the claim occurred on September 9, 1997.
Therefore, we find that the instant case presents the same claim that
is pending before the agency in Case No. 1-J-603-0021-98.
We further note that on appeal, complainant argues that the claims differ
because they purportedly concern different agency officials. However,
we find that both claims concern her treatment on September 9, 1997
regarding her Request for Temporary Schedule. An investigation of that
matter would encompass the actions of all relevant agency employees.
Accordingly, we find that the agency's decision dismissing the complaint
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 17, 2000
__________________
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.