01983248_r
04-07-1999
Myrna Bicknell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Myrna Bicknell, )
Appellant, )
) Appeal No. 01983248
v. ) Agency No. 4F-956-1076-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On March 17, 1998, appellant filed a timely appeal of the February 18,
1998 final agency decision which dismissed one of 13 allegations of
her complaint on the grounds that it stated the same claim as raised in
another complaint filed by appellant.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint or a portion of a complaint which states the same claim that
is pending before or has been decided by the agency or Commission.
In the case at hand, appellant alleged that she was constructively
discharged from her employment when the discriminatory and harassing
conduct of the agency forced her to take disability retirement on March 5,
1996.<1> The agency accepted 12 allegations of appellant's June 5, 1995
complaint for investigation while dismissing the issue of appellant's
constructive discharge. In dismissing the allegation, the agency
stated that appellant's constructive discharge was the subject of her
complaint in Agency No. 4F-956-0033-97 and the allegation was dismissed
by the agency in a May 15, 1997 final agency decision issued in Agency
No. 4F-956-0033-97. The agency also noted that appellant had appealed
its May 15, 1997 final agency decision in Agency No. 4F-956-0033-97 to
the Commission, EEOC Appeal No. 01975202.
Upon review, we find that the agency's decision was proper.
The record contains appellant's December 18, 1996 complaint in Agency
No. 4F-956-0033-97 and, also, the EEO's Counselor's Report. Those records
reflect that appellant alleged that she was forced to seek disability
retirement and that her having to do so constituted a constructive
discharge. The record also contains the May 15, 1997 final agency
decision in Agency No. 4F-956-0033-97, wherein the issue was specifically
identified as follows: when from February 15, 1996, until March 4, 1996,
the complainant was subjected to a continuing pattern of over scrutinizing
that created a situation which was so intolerable that the complainant
was compelled to apply for disability retirement which became effective
on March 4, 1996, and this action constituted a constructive removal of
appellant. Accordingly, we find that the allegation in the case at hand
states the same claim as was raised in appellant's complaint in Agency
No. 4F-956-0033-97 and which was also the subject of the agency's May 15,
1997 final decision in Agency No. 4F-956-0033-97.
Consistent with our discussion herein, the agency's final decision
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:
April 7, 1999
DATE Ronnie Blumenthal, Director
1We note that appellant's June 5, 1995 complaint was the subject of
a September 13, 1996 final agency decision which was appealed to the
Commission. Bicknell v. U.S. Postal Service, EEOC Appeal No. 01970417
(November 7, 1997). In our previous decision, we noted that the agency
had not addressed the issue of appellant's constructive discharge in
its September 13, 1996 final decision.