Rosa Gaona, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 19, 2005
01a54707 (E.E.O.C. Sep. 19, 2005)

01a54707

09-19-2005

Rosa Gaona, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Rosa Gaona v. United States Postal Service

01A54707

September 19, 2005

.

Rosa Gaona,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54707

Agency No. 4E-995-0037-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 13, 2005, 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.<1> In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of sex (female) and reprisal for prior EEO activity when:

On June 9, 2004, complainant was told that she must take lunch;

On July 6, 2004, complainant was told not to use inter-office mail for

union business;

On June 16, 2004, complainant was informed that an employee at another

station was slandering her; and

On July 8, 2004, and July 26, 2004, complainant was denied administrative

leave.

The agency issued a final decision dismissing the complaint for raising

the same matters in a civil action.

The regulation set forth at 29 C.F.R. � 1614.107(a)(3) provides that

the agency shall dismiss a complaint that is the basis for a pending

civil action in a United States District Court in which the complainant

is a party provided that 180 days have passed since the filing of the

administrative complaint, or that was the basis of a civil action decided

by a United States District Court in which complainant was a party.

The record indicates that complainant filed a civil action (A04-0118 CV)

on June 1, 2004, and subsequently filed two amendments to that civil

action in the United States District Court, Juneau District of Alaska.

A review of the record reveals that in her first amendment dated July 19,

2004, complainant raised as a specific incident of harassment that the

agency forced her to have a lunch break where others were allowed to work

without a break. In addition, we note that in her second amendment dated

September 13, 2004, complainant raised, among other things, the agency's

discriminatory harassment of her from1995, through September 2004.

Therefore, we find that the subject complaint was properly dismissed

pursuant to � 1614.107(a)(3). Accordingly, the agency's decision to

dismiss complainant's complaint is AFFIRMED.

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 (S0900)

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. 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

September 19, 2005

__________________

Date

1The agency originally issued a final decision

dated April 28, 2005, without containing appropriate appeal rights.

On June 13, 2005, the agency rescinded its April 28, 2005 decision and

issued a Corrected Dismissal of Complaint informing complainant of the

appropriate appeal rights.