Leanette N. Niccum, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 23, 2003
01A33518_r (E.E.O.C. Oct. 23, 2003)

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