01983100
02-19-1999
Ann L. Cullerton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Ann L. Cullerton v. United States Postal Service
01983100
February 19, 1999
Ann L. Cullerton, )
Appellant, )
) Appeal No. 01983100
v. ) Agency No. 1-B-016-0006-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
her complaint of unlawful employment discrimination in violation of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted by the Commission in accordance with the provisions
of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
a portion of appellant's complaint for stating the same claim that
is pending before or has been decided by the agency pursuant to 29
C.F.R. �1614.107(a).
BACKGROUND
Appellant filed a formal complaint of discrimination dated January 26,
1998, based on physical disability (not specified) when (1) appellant
was not afforded accommodation in the form of a transfer as per her
request of November 12, 1994; (2) appellant was required to provide
medical documentation to substantiate her bid letter dated November 13,
1997: and (3) appellant was denied full holiday pay since returning to
working nights in 1995. In her complaint, appellant states she became
aware on November 17, 1997, that a co-worker was recently transferred
to accommodate a physical disability.
The agency issued a final agency decision, dated February 9, 1998,
accepting issues (2) and (3) for investigation, but dismissing issue (1)
for stating the same claim that is pending before or has been decided
by the agency or Commission. The record shows appellant filed a formal
complaint on December 24, 1996, alleging discrimination based on her
physical disability when she was not afforded a transfer per her request
of November 12, 1994, to accommodate her disability. The agency issued
a final agency decision dated January 29, 1997, in which it dismissed
appellant's complaint for failing to comply with applicable time limits
contained in 29 C.F.R. �1614.105. The agency noted appellant sought
pre-complaint EEO counseling on November 12, 1996, more than 45 days from
the date the alleged discriminatory event occurred. Appellant failed
to file an appeal on the dismissal
ANALYSIS AND FINDINGS
An 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. 29 C.F.R. �1614.107(a). The Commission
finds appellant fails to raise new facts or issues in allegation (1)
that differ in any material way from her December 24, 1996, complaint.
In both the instant and the December 24, 1996, complaint, appellant
alleges the agency discriminated against her by failing to accommodate her
disability and transfer her per her November 1994 request. The agency
dismissed appellant's December 24, 1996, complaint for failing to
comply with applicable time limits pursuant to 29 C.F.R. �1614.107(b).
The fact that appellant recently learned a co-worker was transferred
to accommodate a disability does not create a new cause of action for
appellant. Accordingly, the Commission finds appellant's complaint
states the same claim that has been previously decided by the agency.
CONCLUSION
The agency's decision to dismiss issue (1) of appellant's complaint 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
Feb 19, 1999
________________________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations