0120110296
04-05-2011
Michelle L. Yuhasey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Michelle L. Yuhasey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120110296
Agency No. 4J530010610
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 5, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating
the same claim that has been decided by the agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency's Kingsford P&DC facility in Iron Mountain,
Michigan. On September 20, 2010, Complainant filed a formal complaint
alleging that the Agency subjected her to hostile workplace discrimination
on the basis of reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when: 1) On June 24, 2010, she was
assaulted by her Supervisor; 2) On July 28, 2010, she was issued a Notice
of 7 Day Suspension; and 3) On August 10, 2010, she was advised about
wearing her uniform properly.
In its final decision, the Agency determined that the instant complaint is
actually the same matter raised in Agency Case No. 4J-530-0095-10, which
was dismissed for untimely filing of a formal complaint. Even though
Complainant listed different claims on her PS Form 2565, her 2564A which
was attached to her PS Form 2565 states the same claims as stated below:
On June 24, 2010, Complainant was assaulted by the SDO [supervisor]; on
July 28, 2010, she was issued a Notice of 7 Day Suspension . . . and on
August 10, 2010, she was advised to wear proper uniform (tuck shirt in).
Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
The regulation set forth at 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
Commission finds that Complainant's complaint is stating the same claim
that has been decided by the agency in Agency Case No. 4J-530-0095-10.
Therefore, the Agency's dismissal of Complainant's complaint was proper.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 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
77960, Washington, DC 20013. 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 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2011
__________________
Date
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0120110296
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110296