Martha Jean Dizard, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01990988 (E.E.O.C. Sep. 10, 1999)

01990988

09-10-1999

Martha Jean Dizard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Martha Jean Dizard v. United States Postal Service

01990988

September 10, 1999

Martha Jean Dizard, )

Appellant, )

)

v. ) Appeal No. 01990988

) Agency No. 1-C-441-0189-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On November 9, 1998, appellant filed an appeal with this Commission from

a final agency decision (FAD) dated October 5, 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.,

�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et

seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. �621 et seq.<1> In her complaint, appellant alleged

that she was subjected to discrimination on the bases of physical

disability, age, and in reprisal for prior EEO activity when:

On June 30, 1998, appellant lost eight (8) hours pay plus night

differential due to late delivery of a letter instructing appellant to

return to work;

On June 30, 1998, appellant received a letter reducing her removal to

a time served suspension; and

On July 4, 1998, appellant was told to get off the clock after working

ten (10) units.

The agency accepted allegations (1) and (3), but dismissed allegation

(2) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for stating

the same claim raised in Agency Number 1-C-441-0153-98. Specifically,

the agency found that appellant's prior complaint involved the Notice

of Removal that was reduced in the incident described in allegation (2).

On appeal, appellant appears to believe that her entire complaint was

canceled.<2> Appellant also alleges that the EEO Counselor improperly

processed her complaint.

The record includes appellant's formal complaint for Agency Number

1-C-441-0153-98, which alleges that appellant was subjected to

discrimination when she received a Notice of Removal, effective May 20,

1998. The record also includes a letter, dated June 26, 1998, which

informs appellant that her Notice of Removal, which became effective

May 20, 1998, was reduced to a suspension for the time already served.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

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).

Appellant's prior complaint and allegation (2) both concern discipline

given to appellant because of the same underlying circumstances.

Accordingly, the agency properly dismissed allegation (2).

Regarding appellant's allegation of improper processing, if a complainant

is dissatisfied with the processing of her pending complaint, she

should be referred to the agency official responsible for the quality

of complaints processing. Agency officials should earnestly attempt

to resolve dissatisfaction with the complaints process as early and

expeditiously as possible. See EEO MD 110 (4-8). Furthermore, any

remedial relief to which appellant would be entitled would necessarily

involve the processing of the underlying complaint.

CONCLUSION

Accordingly, the agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Sept. 10, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The agency was unable to supply a copy of a certified mail return receipt

or any other material capable of establishing the date appellant received

the agency's final decision. Accordingly, since the agency failed to submit

evidence of the date of receipt, the Commission presumes that appellant's

appeal was filed within thirty (30) days of receipt of the agency's final

decision. See, 29 C.F.R. �1614.402.

2The Commission notes, however, that only one allegation of appellant's

complaint was dismissed.