0120110023
01-20-2011
Carolyn Jones, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Carolyn Jones,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120110023
Agency No. 1H302002910
DECISION
By Notice of Appeal sent by facsimile dated September 28, 2010,
Complainant filed an appeal with this Commission from the August 24,
2010 final Agency decision (FAD) concerning her EEO complaint of unlawful
employment discrimination alleging violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events at issue, Complainant was employed by the
Agency as a Senior Manager, Distribution Operations in Duluth, Georgia.
In an EEO complaint filed on June 22, 2010, Complainant alleged that
she was discriminated against on the bases of race, color and age when:
(1) on March 11, 2010, she was issued a Letter of Warning in Lieu of a
14-Day Suspension; and (2) in November 2009, she was given a negative
rating on her NPA.
In its FAD, the Agency dismissed the complaint, pursuant to 29
C.F.R. �1614.107(a)(1), on the grounds that the complaint raised the
same claims as were raised in an earlier complaint that was still being
processed. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 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. It has
long been established that "same" does not mean "similar." The Commission
has consistently held that in order for a complaint to be dismissed as
identical, the elements of the complaint must be identical to the elements
of the prior complaint in time, place, incident, and parties. See Jackson
v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996),
rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).
The record shows that on February 10, 2010, Complainant had filed an
earlier complaint, designated as Agency No. 1H-302-0008-10, raising the
identical claims as the June 22, 2010 complaint at issue. The Agency
originally dismissed this complaint as well, but that dismissal was
reversed by this Commission, and the complaint in 1H-302-0008-10 was
remanded back to the Agency for investigation and further processing. See
Carolyn Jones v. United States Postal Service, EEOC Appeal No. 0120101853
(August 9, 2010). The record shows that on August 17, 2010, pursuant to
the remand, the Agency sent Complainant a notice accepting the remanded
claims for investigation. The complaint in 1H-302-0008-10 is still
being processed by the Agency.
Accordingly, the Agency's dismissal of the current complaint
(1H-302-0029-10), pursuant to 29 C.F.R. � 1614.107(a)(1), is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 20, 2011
__________________
Date
2
0120110023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110023