Kathleen McKinnon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 18, 2000
01985470 (E.E.O.C. Jan. 18, 2000)

01985470

01-18-2000

Kathleen McKinnon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kathleen McKinnon, )

Complainant, )

)

v. ) Appeal No. 01985470

William J. Henderson, ) Agency No. 1-C-441-0104-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On July 2, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on June 22, 1998,

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> In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

(Irish-American), color (White), sex (female), and physical disability

(unspecified injury on duty) when:

On January 31, 1998, another limited duty carrier refused to sign papers

changing her from full time carrier to Part-Time Flexible Clerk and was

allowed to remain a full time carrier; while a year ago, complainant had

to sign the same papers and was converted to Part-Time Flexible (PTF).

The agency dismissed complainant's claim on the grounds that the same

issue had been decided by the agency previously. Specifically, the agency

argued that the matter raised in the present complaint was identical and

arose from the same transaction as the matter raised in prior agency case

number 1-C-441-0130-97. In a final agency decision issued October 17,

1997, for complaint 1-C-441-0130-97, the agency defined complainant's

allegation as whether she was subjected to discrimination based on

physical disability (job related injury) when on November 29, 1996,

complainant was notified that she would be reassigned from full time

letter carrier to part-time flexible clerk. Alternatively the agency

dismissed complainant's present complaint for untimely EEO Counselor

contact. Specifically, the agency stated that complainant did not

contact a counselor until January 28, 1998, approximately eleven months

after she claimed that she was converted on February 15, 1997.

On appeal, complainant states that her complaint is not identical to

the one in agency case number 1-C-441-0130-97. Complaint states that

case 1-C-441-0130-97 involved a claim of discrimination with regard

to her reassignment from full-time carrier technician to PTF clerk.

Complaint contends that the present case is different because although it

involves a challenge to her reassignment from full-time carrier technician

to PTF clerk, she now includes evidence that certain individuals that

were sent downtown with her in 1997, remained full-time carriers after

complainant was converted to a PTF clerk. Complainant states that she was

not aware of this alleged disparate treatment until January 28, 1998.

In response to complainant's appeal, the agency disputes complainant's

contention that she was unaware that certain individuals sent downtown

with her remained full-time carriers. The agency notes that in a

hand-written attachment to complainant's complainant 1-C-441-0130-97,

complainant listed several comparatives whom complainant alleged to

have been treated more favorably than complainant, including people sent

downtown. Thus, the agency argues that complainant was aware in 1997,

of the alleged disparate treatment regarding her co-workers.

The record reveals that in a prior complaint filed in April 1997,

complainant alleged that she was subjected to discrimination based on

disability when she was converted from a full-time letter carrier

position to a part-time flexible clerk position. The agency issued

a final decision on October 17, 1997, dismissing complainant's prior

complaint for failure to timely contact an EEO Counselor. On appeal,

the Commission vacated the agency's dismissal and remanded the case for a

supplemental investigation. EEOC Appeal No. 01980731 (October 7, 1998).

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. It has long been

established that �identical� does not mean �similar.� The Commission

has consistently held that in order for a complaint to be dismissed

as identical, the elements of the complaint must be identical to the

elements of the prior complaint in time, place, incident and parties.

See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).

In the present case, complainant raised the issue of her conversion from a

full-time letter carrier position to a part-time flexible clerk position.

While complainant contends that her present complaint is different than

her prior complaint because she now has additional evidence, we find that

the issue presented is identical. Obtaining evidence to support a prior

claim does not alter the nature of the claim being raised. Accordingly,

the agency's decision to dismiss complainant's complaint was proper and

is AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

January 18, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.