01980978
02-01-1999
Debra M. Egolf, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Debra M. Egolf v. United States Postal Service
01980978
February 1, 1999
Debra M. Egolf, )
Appellant, )
)
v. ) Appeal No. 01980978
) Agency No. 4C-442-1002-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 13, 1997, Debra M. Egolf (hereinafter referred to as
appellant) filed a timely appeal from the October 8, 1997, final decision
of the United States Postal Service (hereinafter referred to as the
agency) 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. The record does not show when appellant received
the final agency decision. Accordingly, the appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is AFFIRMED.
The issue presented in this appeal is whether the agency properly
dismissed appellant's complaint.
Previously, on April 17, 1995, appellant sought EEO counseling in
No. 4C-442-1122-95 complaining that based on her sex she was not given
an opportunity for 204(b) training while a male with less than one year
of service was made a 204(b).<1> Appellant sought 204(b) training.
On May 30, 1995, appellant and the agency agreed that:
If the complainant maintains an acceptable attendance record for a
period of one year she will be included as a 204(b) candidate....
On September 12, 1995, appellant sought EEO counseling complaining that
based on her race (white), sex, and reprisal, she was not assigned to
204(b) training while others with poor attendance records were made
204(b)s. Again, appellant sought 204(b) training. She filed the formal
complaint herein, and the agency dismissed it as stating the same claim
raised and resolved in No. 4C-442-1122-95.<2>
In her appeal, appellant argues the merits of her claim and contends
that the agency breached the agreement. The agency submitted all EEO
counseling documents from both matters.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that 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." The same claim is one that sets forth identical matters.
Terhune v. USPS, EEOC Request No. 05950907 (July 18, 1997), citing,
Russell v. Department of the Army, EEOC Request No. 05910613 (August
1, 1991). For purposes of determining whether a new complaint states
the same claim, the Commission focuses on the action(s) or practice(s)
of the agency about which the appellant complains. Meros v. Department
of Commerce, EEOC Request No. 05950690 (January 10, 1997).
In the matter before us, appellant has alleged that she was not placed
in a 204(b) position--the same issue she raised in No. 4C-442-1122-95.
She complains of the same action by the agency--failure to place her
in a 204(b) position, and she seeks the same remedy--placement in a
204(b) position. Since the new complaint raised the same claim as was
made in a matter that has been resolved, the complaint before us was
properly dismissed. 9 C.F.R. �1614.107(a).
In her appeal statement, appellant also states that the agency has
breached the settlement agreement dated May 30, 1995. This claim is not
properly addressed on appeal to the Commission without prior reference to
the agency. Appellant may allege a breach pursuant to 29 C.F.R. �1614.504
of our regulations, which provides that she first contact the agency.
CONCLUSION
Accordingly, the agency's decision 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. �l6l4.604(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:
February 1, 1999
DATE Ronnie Blumenthal, Director
1Bargaining unit employees are given opportunities for training in
supervisory positions under Section 204(b) of the collective bargaining
agreement.
2The agency had issued a previous FAD dismissing the instant complaint;
however, on appeal, the complaint was returned because the agency failed
to submit substantiating documents. EEOC Appeal No. 01962677 (September
18, 1996).