01976968
08-19-1999
Miriam B. Flowers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Miriam B. Flowers, )
Appellant, )
)
v. ) Appeal No. 01976968
) Agency No. 4-G-700-1173-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") 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 appeal is accepted pursuant to the provisions
of EEOC Order No. 960.001. In her complaint, appellant alleged that she
was subjected to discrimination based on her sex, race (Caucasian) and
reprisal for prior EEO activity when, on May 8, 1996, she was allegedly
harassed by being given three PS Forms 4584s concerning observation of
her driving practices on May 7, 1996. The FAD dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a), on the basis that it stated the same
claim that had already been decided by the agency. Based on a review
of the record, we AFFIRM the agency's dismissal of the complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an allegation
or a complaint should be dismissed if it states the same claim that
is pending or has already been decided by the agency or Commission.
The Commission has interpreted this regulation to require that the
complaint must set forth the �identical matters� raised in a previous
complaint filed by the same complainant, in order for the subsequent
complaint to be rejected. See Terhune v. United States Postal Service,
EEOC Request No. 05950907 (July 18, 1997). In order to determine whether
a formal complaint presents �identical matters� as a prior complaint,
three elements of the complaint are reviewed: (1) the date of the most
recent event; (2) the prohibited bases alleged; and (3) the facts which
resulted in the alleged discrimination. See Jordan v. Department of the
Treasury, EEOC Appeal No. 01964461 (June 10, 1997).
The record reveals that on September 21, 1996, appellant filed a formal
EEO complaint which was accepted by the agency and assigned Agency
No. 4-G-700-1224-96. In that complaint, appellant alleged that she was
discriminated against based on her race, sex and prior EEO activity when
she was issued a seven-day suspension on June 17, 1996. The suspension
was issued on the basis that, on May 7, 1996, three agency officials
observed that appellant had left her vehicle running while making a
dismount delivery. Each of the officials completed a PS Form 4584
which recorded their observation. In her instant complaint, filed on
November 7, 1996, appellant alleged that she was issued three PS Form
4584s to harass her and challenges the circumstances which resulted in
the officials observing her on May 7, 1996.
The Commission's records establish that the agency's investigation of
appellant's prior complaint encompassed the circumstances which resulted
in the officials observing her on May 7, 1996, each official's issuance
of a PS Form 4584, and the other agency actions which culminated in the
issuance of the seven-day suspension. (See the record in EEOC Appeal
No. 01976961 (__________, 1999).) Accordingly, the contentions raised in
appellant's prior complaint are identical to the allegations at issue in
her instant complaint and the agency's dismissal of her instant complaint
was proper. Therefore, it is the decision of the Commission to AFFIRM
the FAD.
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:
August 19, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations