01A45605
12-22-2004
Linda F. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda F. Wright v. United States Postal Service
01A45605
12-22-04
.
Linda F. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45605
Agency No. 4G-700-0043-04
DECISION
The agency dismissed complainant's complaint of unlawful employment
discrimination pursuant to 29 C.F.R. � 1614.107(a)(3) for filing a
civil action on the same matter. Complainant filed a complaint alleging
discrimination based on race (Black), color (Black), sex (female), age
(DOB: 1/28/61) and retaliation (prior EEO activity) when: (1) on November
26, 2003, she was instructed to perform the duties of a clerk and she
was not issued higher level pay; (2) on November 29, 2003, her supervisor
made her perform unsafe acts, and, on December 1, 2003, she reported it
to the supervisor in safety and personnel; and (3) on December 24, 2003,
she was told that she would not be offered reinstatement and her last day
would be December 31, 2003, and her supervisor refused her an exit review.
On July 7, 2004, complainant filed a civil action (identified as Civil
Action No. 04CU460-B-M1) in the United States District Court of the Middle
District of Louisiana. On appeal, complainant maintained that her civil
action only raised the issue of her "wrongful termination" based on age.
According to the agency, the allegations raised in complainant's EEO
complaint are encompassed in the civil action. We agree that the central
focus of both the civil action and the EEO complaint is complainant's
claim that she was terminated after she reported a safety violation.
Furthermore, we note that in section four of the civil action complainant
was asked to provided a statement of her claim. Complainant wrote,
"[s]ee letters . . . dated 12/24/03 and 02/25/04." These letters,
which are contained in the report of investigation, discuss in detail
allegations (2) and (3) of complainant's EEO complaint.
With respect to allegation (1), however, we find no evidence that this
claim was encompassed in complainant's civil action; consequently, we do
find that allowing this allegation to proceed would result in complainant
simultaneously pursuing both an administrative and judicial remedy on
the same matter. See Bankston v. Department of the Army, EEOC Appeal
No. 01994713 (February 18, 2000). Likewise, we find no evidence that
would suggest that allegation (1) is somehow inextricably intertwined
with the other allegations of complainant's EEO complaint.
Based on the record before us, we find that the agency's decision is
AFFIRMED in part and REVERSED in part. Allegation (1) will be remanded
to the agency for further processing.
ORDER (Modified)
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, if it has not already done so, shall
also issue to complainant a copy of the investigative file and also shall
notify her of the appropriate rights. If the complainant requests a final
decision without a hearing on allegation (1), 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
____12-22-04______________
Date