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.