Annie L. Herling, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 17, 2000
01985917 (E.E.O.C. Aug. 17, 2000)

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.