01980204
01-12-1999
Carolyn K. Kuderna, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn K. Kuderna v. United States Postal Service
01980204
January 12, 1999
Carolyn K. Kuderna, )
Appellant, )
)
v. ) Appeal No. 01980204
) Agency No. 4-J-600-1166-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on September 25, 1997. The appeal was postmarked October
2, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that it states a claim that is pending before
the agency.
BACKGROUND
Appellant contacted an EEO counselor on February 20, 1995, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when on February 5, 1995 she was (1) subjected
to physical abuse by two carriers and (2) discipline issued against the
two carries was rescinded and (3) she was subjected to physical threats.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on April 23, 1996, appellant timely filed a formal complaint
of discrimination on the bases of race (white), color (white), sex
(female), age (7-10-46), mental disability (post traumatic stress) and
reprisal (prior EEO activity).
On September 15, 1997, the agency issued its final decision (FAD)
dismissing appellant's complaint on the grounds that it states the same
claims that are pending before the agency. The FAD determined that
allegations (1), (2), and (3) are currently being addressed in formal
complaint numbers 4-J-600-1152-95, 4-J-600-1167-95, and 4-J-600-1271-95,
respectively. The agency dismissed appellant's complaint pursuant to
29 C.F.R. �1614.107(a).
ANALYSIS AND FINDINGS
The agency dismissed appellant's complaint because the claims
therein were pending before the agency in formal complaint numbers
4-J-600-1152-95, 4-J-600-1167-95, and 4-J-600-1271-95. EEOC Regulation
29 C.F.R. �1614.107(a) provides that a complaint should be dismissed if
it states the same claim that is pending or has already been decided by
the agency or Commission. The Commission has interpreted this regulation
to require that the complaint must set forth the "identical matters"
raised in a previous complaint filed by the same Complainant, in order
for the subsequent complaint to be dismissed. Russell v. Department of
the Army, EEOC Request No. 05910613 (August 1, 1991). The agency has the
burden to provide evidence and/or proof to support its final decisions.
Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,
1992).
The agency has not provided the Commission with a copy of the formal
complaints in agency case numbers 4-J-600-1167-95 and 4-J-600-1271-95.
The record contains a counselor's report of the instant case. Therein,
the counselor includes a brief narrative of the contents of agency case
numbers 4-J-600-1167-95 and 4-J-600-1271-95. However, the record is
devoid of any evidence from which we can make an independent determination
of whether the issues in these complaints are identical to those raised
in the instant complaint. The agency has provided a copy of appellant's
counseling request for complaint number 4-J-600-1152-95 which contains
several allegations of discrimination, one of which is that the agency
failed to support appellant when she "sent two (2) carries home".
The Commission is unable to determine if this allegation is identical
to allegations (1) and (2) of the instant complaint. Appellant alleges
that allegations (1) and (2) occurred on or about February 5, 1995. In
complaint number 4-J-600-1152-95 appellant indicates December 9, 1994
through December 30, 1994 as the dates on which the most recent incidents
of discrimination occurred. Because the Commission is unable to made
an independent determination regarding the issues in the instant case,
we must remand appellant's complaint for further processing.
We note here that in appellant's statement on appeal she appears
to be challenging the processing of her complaints. EEO Management
Directive 110, Chap.4 (October 22, 1992), discusses the proper handling of
allegations regarding the agency's processing of a pending EEO complaint.
A Complainant who is dissatisfied with the processing of her pending
complaint should be referred to the agency official responsible for the
quality of complaints processing, who should attempt to resolve this
dissatisfaction as early and expeditiously as possible. Id. However,
if a Complainant alleges that she is being treated differently or being
adversely affected by a policy or practice having a discriminatory effect
on the processing of her complaint on a basis protected by the laws
which the EEOC enforces, the complaint must be provided EEO counseling
and the opportunity to file a formal complaint. Id.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
REVERSED. The complaint is REMANDED for further processing in accordance
with this decision and its applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
January 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations