Nancy L. Stoddart, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01992667 (E.E.O.C. Sep. 14, 1999)

01992667

09-14-1999

Nancy L. Stoddart, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Nancy L. Stoddart v. United States Postal Service

01992667

September 14, 1999

Nancy L. Stoddart, )

Appellant, )

) Appeal No. 01992667

v. ) Agency No. 4C-442-0024-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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 � 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted

in accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for stating the same claim that has been decided by the agency.

BACKGROUND

Appellant filed a formal complaint on November 25, 1998, alleging

discrimination on the bases of race (Caucasian), sex (female), physical

disability (carpal tunnel syndrome), and reprisal for prior EEO activity

when, on August 31, 1998, she discovered that another employee was

awarded a bid job with Saturday/Sunday as non-scheduled days while her

job requires her to work on weekends.

In its FAD dated January 13, 1999, the agency dismissed the complaint

for stating a claim that is the same as one that has been decided by

the agency. The agency found that this complaint is identical as the

matter raised in agency case number 4C-442-0161-97. This prior complaint

was heard before an EEOC Administrative Judge who issued a finding of

no discrimination on July 16, 1998. The agency issued its concurring

FAD on September 1, 1998. The agency, finding that this claim was

identical to the prior claim, dismissed appellant's complaint pursuant

to 29 C.F.R. �1614.107(a). This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an allegation or a

complaint should be dismissed if it states the same claim that is pending

or has already been decided by the agency or Commission. The Commission

has interpreted this regulation to require that the complaint must set

forth the "identical matters" raised in a previous complaint filed by the

same complainant, in order for the subsequent complaint to be rejected.

Russell v. Department of the Army, EEOC Request No. 05910613 (August 1,

1991) (interpreting 29 C.F.R. �1613.215(a)(1) - the predecessor of 29

C.F.R. �1614.107(a)).

After a careful review of the documentation submitted by the agency,

we find that the contentions raised in appellant's prior complaints

are identical to the allegation at issue here. We first note that

the prior claim was that appellant was not offered a position which

would allow her to be off on weekends. The case at hand, appellant

is claiming that another employee was given a position which gave

him non-scheduled weekends and she did not get this type of position.

We find that the "crux" of the allegations is the same. Therefore, we

find that the agency properly dismissed appellant's complaint pursuant

to 29 C.F.R. �1614.107(a).

CONCLUSION

Accordingly, the decision of the agency was proper and 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. 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 (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. 14, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations