01a02609
07-12-2000
Brenda Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brenda Miller v. United States Postal Service
01A02609
July 12, 2000
Brenda Miller, )
Complainant, )
) Appeal No. 01A02609
v. ) Agency No. 1-D-271-0069-99
)
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 Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 on June 28, 1999, regarding claims
of discrimination based on sex, retaliation, and physical disability.
Informal efforts to resolve her concerns were unsuccessful. On August
12, 1999, complainant filed a formal complaint.
The agency framed the complainant's claims as follows:
On or about June 3, 1999, an agency Supervisor screamed at complainant
and ordered her to return to work after he sent her to the office and
to sign a form requesting light duty.
On or about June 21, 1999, an agency Supervisor stated that if
complainant did not request light duty, he would put complainant in
a non-pay status, which has caused complainant to experience anxiety
attacks, severe headaches and nausea.
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. The civil action contains the same matters
which are the subject of the final complaint at issue in the instant
appeal. Complainant's complaint alleges that her Supervisor pressured her
into signing a light duty request form instead of following complainant's
doctor's orders to refrain from standing and threatened to put complainant
in non-pay status if she did not comply. Complainant's civil action
specifically states that complainant's Supervisor continues to insist on
her applying for light duty status and continues to harass and intimidate
her, in addition to threatening non-pay status for noncompliance.
The issues raised in the civil action are the same matters contained in
the formal complaint.
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.