01A33941_r
02-19-2004
Gwendolyn Applewhaite, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gwendolyn Applewhaite v. United States Postal Service
01A33941
February 19, 2004
.
Gwendolyn Applewhaite,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33941
Agency No. 4H-327-0004-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 14, 2003, 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.
In her formal complaint, filed on January 14, 2003, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), and in reprisal for prior EEO activity.
In its final decision, the agency determined that complainant's complaint
was comprised of the following three claims<1>:
(1) complainant was not awarded a position in South Florida;
(2) she was incorrectly paid for Pay Period 16, week 2 and Pay Period
17, week 1; and
(3) on September 9, 2002, she was directed to report to the Riviera
Beach office.
The agency dismissed claims (1) - (3) on the grounds that they state
the same claims that had been raised in previously filed EEO complaints.
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides in part 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.
Claim (1)
Regarding claim (1), the record reveals that complainant previously
filed a formal EEO complaint on January 14, 2003, concerning her not
being awarded a position in South Florida District, identified as
Agency Case No. 4H-327-0035-03. The Commission determines that claim
(1) was properly dismissed for stating the same claim that is pending
before or has been previously decided by the agency or Commission.
Claim (2)
Regarding claim (2), the record reveals that complainant filed a formal
EEO complaint on October 22, 2002, concerning being incorrectly paid for
Pay Period 16, week 2 and Pay Period 17, week 1, which was identified
Agency No. 4H-327-0211-02. Therefore, we find that the agency properly
dismissed claim (2).
Claim (3)
Regarding claim (3), we determine that the matters raised in the
prior complaint (Agency No. 4H-327-0027-03) and the incident raised
in instant complaint are not identical. The record reflects that in
Agency No. 4H-327-0027-03, the agency accepted the following claims for
investigation: after being placed in her regular position as Manager,
Customer Service, in Riviera Beach, complainant (a) was not allowed to
participate in Manager's meetings in September 2002; (b) on September 23,
2002, her supervisor staffing was changed; and (c) from September 30, 2002
through October 19, 2002, her office was overly scrutinized with several
reviews and audits, and she was verbally abused by an agency Postmaster.
In contrast, claim (3) of the instant complaint addresses the issue
that on September 9, 2002, complainant was directed by MSCO to report
to her Riviera Beach office as a Level 16 Supervisor with the work hours
of 10:00-17:00.
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). The matters raised in Agency
4H-327-0027-03 do not address the identical issue as raised in claim (3)
of the instant complaint. Therefore, we find that the agency improperly
dismissed claim (3).
Accordingly, the agency's decision to dismiss claims (1) and (2) is
AFFIRMED. The agency's decision to dismiss claim (3) is hereby REVERSED.
Claim (3) is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (3)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 19, 2004
__________________
Date
1For purposes of clarity, the Commission has
numbered complainant's claims as claims (1)-(3).