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