0120100770
06-01-2010
Shandra Franks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Shandra Franks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120100770
Agency No. 4G770030409
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 12, 2009, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of sex (female),
mental disability (job related stress), age (46), and reprisal for prior
protected EEO activity when:
1. she was held to a higher standard via work assignments;
2. complainant's instructions from her doctor were ignored; and
3. she was issued "junk" discipline.
The record indicates that complainant sought counseling regarding this
matter on July 10, 2009. Prior to filing the instant complaint on
October 21, 2009, complainant and the agency settled claims 1 and 2 in
an agreement dated September 17, 2009 which provided the following:
This is a partial settlement agreement. The parties agree to abide by the
8 hour medical restrictions. Late leaving will be addressed by Form 3996
and clock tings. Mileage will be reimbursed by Form 4570 by
management. The parties have agreed to work together on covering the
mail. The parties have not resolved the issues concerning disciplines."
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.
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. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Upon review, the Commission finds that the agency properly dismissed
claims 1 and 2 of the instant complaint for stating the same claim that
had been previously settled pursuant to an EEO settlement agreement
dated September 17, 2009, in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1). In reaching this conclusion, the Commission finds that
the agreement between the parties addressed complainant's concerns
regarding the agency's conduct with respect to work assignments and
instructions provided by her doctor. Complainant has not alleged that
the agency breached any portion of the agreement nor has she provided
any statement on appeal to dispute that claims 1 and 2 were covered by
the September 17, 2009 settlement agreement.
The agency's final decision dismissed claim 3 on the grounds that it
had previously been addressed through the agency's negotiated grievance
procedure. In complainant's formal complaint she indicates that she
had received "junk discipline" within the past 45 days. The report of
the e EEO Counselor indicates that complainant alleged that the agency
discriminated against her when on March 30, 2009, she was issued a Letter
of Warning (LOW) for unsatisfactory work performance and for failure to
follow instructions; on April 21, 2009, July 3, 2009 and July 18, 2009 she
was issued time off suspensions for unsatisfactory work performance and,
failure to follow instructions and willful delay of mail. The record
contains copies of four separate Step B grievance decisions indicating
that the LOW as well as the suspensions were expunged from complainant's
record.
Upon review, we find that the agency properly dismissed claim 3 of the
instant complaint the instant complaint for failure to state a claim
because the discipline identified therein June 9, 2009 was expunged
before the filing of the formal complaint dated October 21, 2009.
See Stevenson v. United States Postal Service, EEOC Appeal No. 01A52057
(April 27, 2005) (affirmed dismissal for failure to state a claim of
a complaint alleging discriminatory seven day suspension where via a
grievance settlement, the suspension was rescinded prior to the filing
of the formal complaint); Sowell v. United States Postal Service,
EEOC Appeal No. 01A45473 (November 24, 2004) (affirmed dismissal for
failure to state a claim of a complaint alleging discriminatory notice
of medical separation where via a grievance settlement, the notice was
rescinded prior to the filing of the formal complaint).
Accordingly, the agency's decision dismissing the instant complaint is
affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
June 1, 2010
__________________
Date
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0120100770
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100770