01a53991
08-31-2005
Cheryl E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl E. Williams v. United States Postal Service
01A53991
August 31, 2005
.
Cheryl E. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53991
Agency No. 4-C-150-0047-01
Hearing No. 170-2005-00044X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action dated April 19, 2005, dismissing her complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her formal complaint, filed on March 12, 2001, complainant claimed
that she was the victim of unlawful employment discrimination on the
bases of sex (female), disability (depression), age (D.O.B. 9/12/52),
and in reprisal for prior EEO activity when:
From January 10, 2001, continuing, she has been subjected to harassment
and disparate treatment to include the issuance of Letters of Warning;
On going, she has been subjected to a hostile work environment, to
include a policy resulting in unfair work assignments;
On May 19, 2001, the agency notified her of a fitness for duty
examination;
On May 29, 2001, complainant's work duties were removed; and
On March 30, 2001, management denied complainant a mid-year performance
evaluation.
The agency accepted the complaint for investigation, and complainant
requested a hearing before an EEOC Administrative Judge (AJ). During the
hearing process, the agency submitted a Motion to Dismiss the Complaint
as Res Judicata. Specifically, the agency argued that complainant filed
an appeal with the Merit System Protection Board (MSPB), concerning
a demotion. The agency argued that therein, complainant raised
discrimination as an affirmative defense, on the bases of sex, age,
and disability. The agency argued further that the same matters raised
in the captioned complaint were addressed before the MSPB. The agency
also argued that complainant filed a civil action in the District Court
for the Western District of Pennsylvania, challenging the MSPB's decision
finding no discrimination. On April 11, 2005, the AJ issued an order
granting the agency's Motion, and dismissed the complaint. The agency
issued a final order on April 19, 2005, adopting the AJ's dismissal.
The instant appeal followed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. Commission regulations
mandate dismissal of the EEO complaint under these circumstances so as to
prevent a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating
the potential for inconsistent or conflicting decisions, and in order
to grant due deference to the authority of the federal district court.
See Shapiro v. Department of the Army, EEOC Request No. 05950740 (October
10, 1996); Stromgren v. Department of Veterans Affairs, EEOC Request
No. 05891079 (May 7, 1990); Kotwitz v. United States Postal Service,
EEOC Request No. 05880114 (October 25, 1988).
The matters raised in the instant complaint primarily concern incidents
which occurred after the issuance of the notice to complainant of her
proposed demotion, on March 23, 2001, especially those in claims (2)
through (5). Regarding claim (1), we find that although the alleged
harassment in claim (1) dates back to January 2001, and would, in part,
pre-date a proposed demotion issued on March 23, 2001, we cannot determine
with certainty that the identical incidents are being alleged. Moreover,
we find that the MSPB initial decision at issue does not address any
Letters of Warning, as raised in claim (1). Therefore, we find that while
the MSPB decision at issue (PH-0752-01-0355-I-3, issued on January 29,
2003) concerns complainant's affirmative defense of unlawful employment
discrimination on the bases of sex, age, disability, and reprisal, we
cannot conclude that it addresses the identical incidents raised in the
instant complaint.<1> Therefore, we conclude that the MSPB decision
at issue does not address the identical issues raised in the instant
complaint, and does not operate to bar the instant complaint under the
doctrine of res judicata or collateral estoppel.
Notwithstanding this determination, we find that the civil action filed
by complainant on August 11, 2004 (Civil Action # 04-1200), in addition
to challenging the MSPB's finding of no discrimination, also raises
a claim of constructive discharge in claiming that she was forced to
resign in October 2003. Therefore, because the civil action alleges
constructive discharge, and also alleges discrimination on the bases of
sex, age, disability, and reprisal, we find that the incidents raised
in the instant complaint are encompassed in complainant's constructive
discharge claim pending before the District Court for the Western District
of Pennsylvania.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
final action dismissing the captioned complaint.
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
August 31, 2005
__________________
Date
1Complainant appealed the MSPB's decision
to the Commission, which determined that the MSPB properly found
no discrimination regarding complainant's demotion. See Williams
v. U.S. Postal Service, EEOC Petition No. 03A40100 (July 14, 2004).