Jamie S. Cupp, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 20, 2000
01a00926 (E.E.O.C. Apr. 20, 2000)

01a00926

04-20-2000

Jamie S. Cupp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jamie S. Cupp, )

Complainant, )

)

v. )

) Appeal No. 01A00926

William J. Henderson, ) Agency No. 4-G-730-0168-99

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 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.<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 claiming she had suffered

discrimination based on sex and reprisal. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, on September 2,

1999, complainant filed a formal complaint. The agency framed the claim

as follows: On July 12, 1999, complainant received notification of her

removal from the Postal Service which was effective July 12, 1999.

On October 25, 1999, the agency issued a FAD dismissing the complaint

on the grounds that it stated the same claim that is pending before

the agency. Specifically, the FAD indicated that complainant filed a

complaint on June 22, 1998 (Complaint No. 4-G-730-0099-98) regarding

the issuance of a notice of removal. According to the agency, the case

was awaiting a hearing before an Administrative Judge. The record in

this case contains a copy of a letter from the agency to complainant,

dated July 22, 1998. Therein, the agency informed complainant that

the following issue was accepted for investigation in Complaint

No. 4-G-730-0099-98: On May 4, 1998, complainant received a Notice of

Removal.

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.

The record reflects that complainant received EEO counseling and

subsequently filed a complaint, regarding a letter of removal she

received on May 4, 1998 (Complaint No. 4-G-730-0099-98). The removal

notice, dated April 28, 1998, charges complainant with improper conduct,

specifically, the embezzlement of agency funds. In the instant case,

complainant contends she was discriminated against when, on July 12, 1999,

she received notification of her removal. The Counselor's Report reveals

that the removal for improper conduct was based on embezzlement charges.

The record also contains a letter from complainant's attorney to an agency

EEO official dated October 15, 1999, acknowledging that the instant case

addresses the same issue, complainant's removal. According to the letter,

the instant case was filed after complainant's discharge was effective,

�in order to insure that there was no procedural deficiency....�

We note, however, that on appeal, complainant's attorney argues

that the matters raised in the instant complaint and in Complaint

No. 4-G-730-0099-98 are distinct. Specifically, complainant's attorney

contends that �the first case involved a notification of intent to

discharge, and the placement of complainant of non-pay status for over

a year� while the instant case addresses �the actual discharge.� The

Commission finds, however, that this distinction is not supported by

the record. The documents regarding Case No. 4-G-730-0099-98, including

the formal complaint and Counselor's Report, do not address a suspension

or non-pay status. The Commission determines that both the instant

complaint and the prior complaint address complainant's removal for

improper conduct.

Accordingly, the agency's 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:

April 20, 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.