01976459_r
01-08-1999
Yolanda Lopez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yolanda Lopez, )
Appellant, )
)
v. ) Appeal No. 01976459
) Agency No. 1G-761-0106-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
U.S.C. �1614.107(a), for stating the same claim that was pending before
or decided by the agency or Commission. Appellant alleged that she
was subjected to discrimination on the bases of race (Caucasian), sex
(female), national origin (Mexican-American), age (54), and in reprisal
for prior EEO activity when on May 15, 1997, she received a letter
denying her request for reinstatement.
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 record in this case discloses that appellant filed a previous EEO
complaint, identified as Agency No. 4G-760-0154-97 concerning the denial
of her reinstatement request on September 6, 1996. Appellant provided
no documentation or other evidence suggesting that circumstances changed
from the date of her previous reinstatement request and the reinstatement
request that is the subject of the instant complaint, such that she
would have expected a different response to her request.
We find this case analogous to those cases wherein the agency dismisses
allegations concerning denials of requests for reinstatement on
the grounds of untimely EEO contact. The Commission has held that
a complainant cannot indefinitely extend the limitations period
for initiating EEO contact merely by resubmitting a request for
reinstatement, i.e., the Commission determined that when subsequent
requests for reinstatement are made when the particular circumstances
have not changed, a complainant cannot reasonably expect a different
result than the original denial and it is merely a reiteration of the
original request. Cramer v. United States Postal Service, EEOC Appeal
No. 01911326 (August 16, 1991), request for reopening denied, EEOC
Request No. 05910908 (January 7, 1992). In the present case, we find
that appellant's subsequent request in May 1997, was merely a reiteration
of the original request upon which she previously filed a complaint.
Accordingly, the agency's final decision dismissing appellant's complaint
pursuant to 29 C.F.R. �1614.107(a) was proper and is AFFIRMED.<1>
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:
Jan. 8, 1999
____________________________
DATE Ronnie Blumenthal, Director
1Since we are affirming the agency's dismissal of appellant's
complaint on the grounds that it raised the same claim as was
raised in a prior complaint, we will not address the agency's
alternative grounds for dismissal, i.e., that it was untimely.