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.