Colleen Reynolds, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01A02424 (E.E.O.C. Jul. 24, 2000)

01A02424

07-24-2000

Colleen Reynolds, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Colleen Reynolds v. United States Postal Service

01A02424

July 24, 2000

.

Colleen Reynolds,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A02424

Agency No. 1B-041-0005-00

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision pertaining to 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. 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 EEO office regarding claims of discrimination

based on disability and retaliation. Informal efforts to resolve

complainant's concerns were unsuccessful. Subsequently, on December 2,

1999, complainant filed a formal complaint claiming that her June17,

1999, July 21, 1999, and August 13, 1999 requests to restore her lost

time resulting from an on-the-job injury to approved Leave Without Pay

(LWOP) were not processed by the agency.

On January 12, 2000, the agency issued a decision dismissing the

complaint for failure to state a claim and stating the same claim that

is pending before the agency. Specifically, the agency determined

that complainant was issued a Notice of Removal effective November 22,

1997, and therefore was not an employee or applicant for employment.

In addition to determining that complainant did not have standing, the

agency concluded that complainant had failed to show a harm or loss to

a term, condition or privilege of her employment. The agency further

determined that on September 16, 1998 complainant filed a complainant

regarding his removal. According to the agency, the removal was based

on charges of complainant being Absent Without Leave (AWOL) which

the instant complaint contends should be considered LWOP. Therefore,

the agency concluded that the instant complaint should be viewed as

background information for the prior complaint, rather than as an

independent complaint of discrimination.

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 reflects that on September 11, 1998 complainant filed a formal

complaint (1B-041-0002-98) regarding her termination, effective November

22, 1997. In addition, the record indicates that the Notice of Removal

was based on AWOL charges. Here, complainant claims her AWOL status should

be changed to LWOP. The agency's failure to change her charges of AWOL

to LWOP does not give rise to a new claim. The underlying claim, that

is, termination based on complainant's AWOL status, remains the same,

as well as complainant's potential remedy. We therefore determine that

the present complaint is a mere elaboration of the prior complaint. An

investigation of the prior complaint would encompass the issue in the

claim here, as they both address complainant's AWOL charges. Therefore,

we find that the agency properly dismissed the complaint for raising

the same matter that is currently pending before the agency.

Because of our disposition we do not consider whether the complaint was

properly dismissed on other grounds.

Accordingly, the agency 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:

July 24, 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.