01982341
02-11-1999
Elizabeth Tillman-Cammon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elizabeth Tillman-Cammon v. United States Postal Service
01982341
February 11, 1999
Elizabeth Tillman-Cammon, )
Appellant, )
) Appeal No. 01982341
v. ) Agency No. 4-C-442-0060-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 9, 1998, appellant filed a timely appeal of the January
9, 1998 final agency decision, received by her on January 13, 1998.
The agency dismissed her complaint on the grounds that it stated the same
claim as another complaint filed by appellant. The agency also dismissed
the complaint on the alternative grounds of failure to state a claim.
The present final agency decision (FAD-1) framed the allegations of
appellant's December 20, 1997 complaint (C-1) as whether appellant
was discriminated against on the bases of color (not specified) and
retaliation (prior EEO activity) when: (1) in a September 12, 1997
letter from the Acting Manager of Finance to appellant, appellant was
informed that her allegations of an alleged threat would not be acted
upon by management; and (2) the EEO office failed to provide appellant
with due process and or equitable treatment in regard to a workplace
violence report filed with the EEO office. In dismissing the complaint,
the agency noted that the complaint stated the same claim as appellant
raised in Agency No. 4-C-442-0059-98 and, also, that appellant was not
aggrieved.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state
a claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a) or states the
same claim that is pending before or has been decided by the agency
or Commission. An agency shall accept a complaint from any aggrieved
employee who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or a disabling condition. See 29 C.F.R. �1614.103; �1614.106(a).
The Commission's Federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The record reveals that appellant filed a complaint (C-2) in Agency
No. 4-C-442-0059-98. C-2 appears to have been filed on the same
date as C-1. The record also reveals that the agency issued a final
agency decision (FAD-2) in C-2 on November 9, 1998, after the issuance
of FAD-1. Appellant filed an appeal of FAD-2, which is currently
pending before the Commission. EEOC Appeal No. 01991556. In FAD-2,
the issue is identified as whether appellant was discriminated against
on the bases of race (Black), sex (female) and retaliation when on
September 13, 1997, she received a September 12, 1997 letter from the
Acting Manager of Finance which informed her that there was no basis
for an investigation regarding an alleged threat appellant reported and,
therefore, no action was required by management. We find that allegation
(1) in the present complaint states the same claim that is the subject of
FAD-2 and, therefore, was properly dismissed. See Arnold v. Department
of Treasury, EEOC Appeal No. 01971009 (August 9, 1997)(allegation
inextricably intertwined with the subject of a prior complaint);
Backus v. U.S. Postal Service, EEOC Appeal No. 01960921 (September 23,
1996)(underlying action at issue related to the same factual allegation
as raised in a prior complaint).
Regarding allegation (2), the EEO Counselor's Report indicates that
appellant alleged that the EEO office failed to act upon her allegation
of an alleged threat and that she became aware of the EEO Office's
inaction when she received the September 12, 1997 letter from the
Acting Manager of Finance. The September 12, 1997 letter indicates that
appellant visited the EEO Office regarding circumstances concerning the
alleged threat and that appellant allegedly indicated that she did not
want to file a Form 2564-A [Information for Precomplaint Counseling].
We find that allegation (2) is an allegation pertaining to the improper
processing and investigation of the underlying complaint in Agency
No. 4-C-442-0059-98. Allegations that an agency conducted an improper
investigation or improperly processed a complaint do not give rise to
an independent claim and should be addressed during the processing of
the complaint out of which they arose. See Schultz v. U.S. Postal
Service, EEOC Request No. 05950173 (September 26, 1996); Kleinman
v. U.S. Postal Service, EEOC Request No. 05940579 (September 22, 1994);
Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March 13, 1997).
Any remedial relief to which appellant would be entitled would necessarily
involve the processing of C-2. Accordingly, the agency's dismissal of
allegation (2) for failure to state a claim was proper.
Consistent with our discussion herein, the agency's final decision is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations