01a02608
07-12-2000
Brenda Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brenda Miller v. United States Postal Service
01A02608
July 12, 2000
Brenda Miller, )
Complainant, )
) Appeal No. 01A02608
v. ) Agency No. 1-D-271-0002-00
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 12, 2000, complainant filed a timely appeal with this
Commission from the January 12, 2000 final agency decision dismissing her
EEO complaint of unlawful employment discrimination of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq, and and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 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 agency EEO office on September 13, 1999,
regarding claims of discrimination based on sex, retaliation, and physical
disability. Informal efforts to resolve her concerns were unsuccessful.
On October 18, 1999, complainant filed a formal complaint, claiming
that she was not reasonably accommodated and that she was �clocked off�
because she could not work in automation.
On January 12, 2000, the agency issued a FAD, dismissing the claim
on the grounds that the matter was raised in a pending civil action
in U.S. District Court. Specifically, the agency indicated that in
approximately June 1999, complainant filed a civil action (identified as
Civil Action No. 1:99CV00541) in the United States District Court for the
Middle District of North Carolina. The agency determined that the claims
raised therein are the same as those raised in the instant complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(3)) provides that
the agency shall dismiss a complaint that is the basis for a pending
civil action in a United States District Court in which the complainant
is a party provided that 180 days have passed since the filing of the
administrative complaint, or that was the basis of a civil action decided
by a United States District Court in which complainant was a party.
The record contains a copy of the civil action cited by the agency
in its final decision. A review of the civil action reflects that it
contains the same matters that are the subject of the final complaint
at issue in the instant appeal. The Commission notes that the agency
apparently dismissed the complaint prior to the expiration of the
180-day period provided for in 29 C.F.R. � 1614.107(a)(3). However, in
order to conserve resources and avoid the potential for inconsistent or
conflicting decisions, the Commission affirms the agency's dismissal of
the complainant's administrative complaint. If the court dismisses the
complainant's complaint for premature filing, complainant may request that
the Commission reinstate this appeal for further processing. See Posey
v. Department of the Navy, EEOC Appeal No. 01951777 (September 21, 1995).
Accordingly, the agency's decision to dismiss complainant's complaint
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:
July 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.