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.