01A30199_r
05-22-2003
Barbara F. Seiden, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Barbara F. Seiden v. United States Postal Service
01A30199
May 22, 2003
.
Barbara F. Seiden,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30199
Agency No. 4-J-480-0086-02
DECISION
As an initial matter, the Commission notes that the final agency
decision dated August 23, 2002 dismissing the instant complaint,
was initially before the Commission in Seiden v. United States Postal
Service, EEOC Appeal No. 01A30107 (February 6, 2003). Therein, the
Commission dismissed complainant's appeal from the agency's August 23,
2002 final decision, on the grounds that the appeal was untimely filed.
Thereafter, complainant's request for reconsideration was denied.
Seiden v. United States Postal Service, EEOC Request No. 05A30560 (May
27, 2003). However, based on a review of Commission records, we now
determine that complainant's appeal from the final agency decision
of August 23, 2002, was timely filed by her attorney of record on
September 23, 2002, and docketed under a separate appeal number.<1>
Having determined that complainant had filed a timely appeal from the
August 23, 2002 final agency decision, we will now address the propriety
of the agency's dismissal of complainant's complaint.
On June 28, 2002, complainant filed the instant complaint, alleging that
she was the victim of unlawful employment discrimination on the bases
of disability and in reprisal for prior protected activity.
In its final decision dated August 23, 2002, the agency determined that
complainant's complaint was comprised of two claims, that it identified
in the following fashion:
Complainant was put in absent without leave (AWOL) status from November
through December 2001, which prevented her from receiving a cost of
living allowance (COLA) lump sum payment of $499.00; and
On March 19, 2002, complainant became aware that her disability retirement
was approved.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) on the grounds that it stated the same claim that is
pending before or has been decided by the agency or Commission. In its
final decision, the agency found that complainant raised the identical
matter in a previous EEO complaint, Complaint No. 4-J-480-0059-02,
filed by complainant on March 27, 2002, and dismissed by the agency
in a decision dated May 20, 2002. Complainant now appeals the agency's
determination that the previously filed complaint raises the same issues
as those raised herein.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss a complaint that states the same claim that is pending
before or has been decided by the agency or Commission.
On appeal, complainant submits through her attorney, a copy of the final
decision issued by the agency in Complaint No. 4-J-480-0059-02. Therein,
the agency indicates that complainant alleged discrimination on the bases
of race (Caucasian), color (White), religion (Jewish), national origin
(Jewish), sex (female), age (DOB: 11/24/46), disability, and in reprisal
for prior protected activity when on May 23, 2001, she was removed from
her level 5 detail position as a general clerk.<2>
In its final decision dismissing the instant complaint, the agency
indicated that the remedy requested in the previously filed complaint
was that complainant's AWOL status be changed to leave without pay and
that she receive a $499.00 COLA payment. The agency found that the two
complaints raised issues that were "reasonably related."
The Commission has consistently held that in order for a complaint
to be dismissed as identical pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), the elements of the complaint must be identical to the
elements of the prior complaint in time, place, incident and parties.
See Jackson v. United States Postal Service, EEOC Appeal No. 01955890
(April 5,1996). Because the previously filed complaint, Complaint
No. 4-J-480-0059-02, concerned a removal in May 2001, and the instant
complaint concerns being placed in AWOL status March through November
2001, and a COLA payment, we find that the two complaints cannot be deemed
"identical."
Regarding the agency's dismissal of claim 2 regarding complainant's
disability retirement on the grounds that it was raised by complainant
in a previously filed complaint, we determine that the claim is better
analyzed in terms of whether it states a claim. In claim 2, complainant
indicates simply that on March 19, 2002, she became aware that her
disability retirement was approved, but failed to specify how she was
harmed concerning a term, condition, or privilege of her employment.
Consequently, we find that claim 2 fails to state a claim and is dismissed
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision dismissing claim 1 is REVERSED and
claim 1 is REMANDED to the agency for processing in accordance with
this decision and the Order below. The agency's dismissal of claim 2
is AFFIRMED for the reasons stated herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, 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
May 22, 2003
__________________
Date
1Commission records reveal that complainant's attorney of record filed
an appeal on her behalf regarding the agency's dismissal of the instant
complaint, Agency No. 4-J-480-0086-02; however, the cover letter and
EEOC Appeal Form 573 provided by complainant's attorney incorrectly
indicated that the appeal was regarding Agency No. 4-J-480-0059-02.
Other documents contained in complainant's appeal file, correctly
identified Agency No. 4-J-480-0086-02. Therefore, the Commission
determines that complainant's appeal of the agency's August 23, 2002
final decision was timely filed.
2After the agency dismissed Complainant No. 4-J-480-0059-02, complainant
filed an appeal. The Commission dismissed the appeal on the grounds
that it was untimely filed. Seiden v. USPS, EEOC Appeal No. 01A23972
(October 18, 2002).