01A33518_r
10-23-2003
Leanette N. Niccum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leanette N. Niccum v. United States Postal Service
01A33518
October 23, 2003
.
Leanette N. Niccum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33518
Agency No. 4H-335-0140-03
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated May 7, 2003, 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, national origin,
color, age, and reprisal for prior EEO activity when:
In 2002 and February 3, 2003, complainant was not provided with a written
work schedule;
Complainant was not provided work in lieu of casuals and overtime
volunteers;
Complainant was not granted PTF hold-down;
Complainant received discipline in retaliation for her spouse's EEO
complaint;
Complainant was called in for duty with less than one hour's notice.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact, after finding that complainant
failed to supply a specific date of incident in 2002. The agency
further dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim and for stating the same claim as raised
in agency number 4H-335-0129-03.
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.
The Commission finds that complainant and the agency entered into a
settlement agreement on March 26, 2003, that settled the claims of agency
case number 4H-335-0129-03. On May 2, 2003, complainant filed an appeal
with the Commission regarding this settlement agreement, docketed as EEOC
Appeal No. 01A33233. We find the claims in that matter (4H-335-0129-03),
encompass the claims raised in the instant complaint. Complainant has
not stated how the claims in the instant complaint differ from those
raised and settled in 4H-335-0129-03. We find the agency's dismissal
of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) is proper.
Accordingly, we AFFIRM the agency's dismissal of the 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
October 23, 2003
__________________
Date