01a00267
04-28-2000
Elaine E. Reese, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elaine E. Reese, )
Complainant, )
)
v. ) Appeal No. 01A00267
) Agency No. 1-H-321-0109-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 5, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) 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 pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the reasons set
forth below, we AFFIRM the FAD's dismissal of the complaint.
On August 2, 1999, complainant contacted the EEO office regarding claims
of discrimination based on race, sex, physical disability, mental
disability, and reprisal. Informal efforts to resolve her concerns
were unsuccessful.
On August 23, 1999, complainant filed a formal complaint claiming that
her supervisors assigned her to duties outside of her regular work
schedule, and failed to provide her with a reassignment as a reasonable
accommodation. Complainant also claimed that the agency provided
co-workers with the accommodations they requested at the location where
she desired to work, and did not require them to work outside of their
regular work schedules.
The agency issued a FAD dismissing complainant's claim because it
was the same claim she had raised in a prior complaint (Complaint
No. 1-H-321-0085-98) which was pending before an EEOC Administrative
Judge.<2> Neither complainant nor the agency has submitted a statement
on appeal.
Volume 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.
Here, the record reveals that complainant's prior complaint (Complaint
NO. 1-H-321-0085-98), and the instant complaint identify the same
management officials, and address the same claim, i.e., that her
supervisors assigned her to duties outside of her regular work schedule,
and failed to reassign her to a certain duty location as a reasonable
accommodation, but allowed other workers to retain their regular schedules
and to perform duties within their restrictions at the location that
they desired. Accordingly we find that the instant complaint is a mere
elaboration of the prior complaint, and that the agency's dismissal was
proper.<3> Accordingly, the agency's decision to dismiss the instant
is 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:
April 28, 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.
2The FAD also contains a discussion regarding dismissal of complaints
for failure to state a claim. However, the failure to state a claim
discussion abruptly ceases and the FAD thereafter addresses the dismissal
of the instant complaint for raising the same matter addressed in a
prior complaint. Under these circumstances, the Commission determines
that the FAD's inclusion of the discussion regarding whether complainant
is aggrieved was inadvertent.
3The record shows that subsequent to the filing of the instant complaint,
complainant and the agency executed a Settlement Agreement, dated October
28, 1999, for the prior complaint.