0120093231
05-12-2011
Constance R. Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Constance R. Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120093231
Agency No. 1A-086-0007-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 18, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Custodial Group Leader at the Agency’s Processing and Distribution
Center in Trenton, New Jersey.
On May 23, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964, when:
1. since November 2007, Complainant has been assigned regular custodial
duties rather than group leader duties; and
2. her office area was dismantled.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), on the grounds that Complainant had raised the same
claims in a prior EEO complaint that was still being processed. The
Agency also dismissed the complaint for failure to state a claim,
reasoning Complainant was not aggrieved by these actions.
Complainant appealed. On appeal, Complainant’s attorney asserts
that her complaint was filed in a timely manner, but does not address
the Agency’s dismissal of the matter pursuant to 29 C.F.R. §�
�1614.107(a)(1).
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.
In Davis v. U.S. Postal Service, EEOC Appeal No. 0120092682 (March 24,
2011), the Commission reversed the Agency’s dismissal of a prior
complaint filed by Complainant, docketed as Agency No. 1A-086-0016-08.
That complaint was then remanded to the Agency for further processing. In
Agency No. 1A-086-0016-08, Complainant alleged discrimination based on
race, sex, and retaliation when, starting in late 2007, she was assigned
custodial work although she was a group leader, and her "office" space
was converted. We conclude that these claims are identical to the ones
Complainant is now again raising in the current complaint. Therefore,
the Agency’s dismissal, pursuant to 29 C.F.R. § 1614.107(a)(1),
was appropriate. As we are affirming the Agency’s dismissal of
the complaint because it states the same claim as a previously filed
complaint, we will not address the Agency’s alternative argument that
the complaint fails to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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
May 12, 2011
__________________
Date
2
0120093231
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093231