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.