01A55282
12-29-2005
Kim B. Stovall, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kim B. Stovall,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55282
Agency No. 4G-700-0121-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated July 19, 2005, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Black), national origin (Multi-
Ethnic), sex (female), age (D.O.B. 12/10/55), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when on May 3, 2005, the
position of Internal Control Analyst was posted and she could not bid on
the position because she had not been provided, within her department, the
opportunity to receive the training that would have allowed her to compete
for the Analyst position.
The agency dismissed the complaint for stating the same claim previously
filed by complainant. In her prior complaint, Agency No. 4G-700-0159-04,
complainant alleged, among other things, that, on August 4, 2004,
management failed to train her properly for a detail as Finance Internal
Control Analyst, EAS-17, and she surrendered her detail under duress
because of the emotional trauma caused her by a co-worker. Based on
complainant's prior complaint, the agency dismissed the complaint at hand
pursuant to 29 C.F.R. � 1614.107(a)(1).
This appeal followed. Complainant indicated on appeal that the agency
posted two positions for Internal Control Analysts on May 3, 2005. She
pointed to an alleged comparator employee who is employed in Processing and
Distribution. She noted that the Processing and Distribution employee has
been permitted to do details which resulted in his selection for one of the
Analyst positions. Complainant, however, was not afforded such
opportunities. She asserted that she has not been giving the training for
upward mobility. She claimed that her prior EEO complaint involved a claim
of "hostile work environment" rather than training opportunities for
advancement to the EAS-17 level.
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 reviewing the
record in her current complaint, we find that complainant clearly alleged
discrimination based on the denial of training opportunities, rather than
the selection of the comparator to the Analyst position. Further, a review
of her prior EEO activity indicates that she alleged unlawful harassment.
The first incident complainant raised to support her claim of harassment
was that management failed to train her properly for a detail as a Finance
Internal Control Analyst, EAS-17. Upon review, we find that complainant
has in fact raised the issue of denial of training with the agency in a
prior EEO complaint. Therefore, we affirm the FAD dismissing the complaint
at hand.
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
December 29, 2005
__________________
Date