01a00059
03-28-2001
Maria Anaya, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Maria Anaya v. United States Postal Service
01A00059
03-28-01
.
Maria Anaya,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00059
Agency No. 1F-901-0180-99
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated September 29, 1999, concerning her complaint of
unlawful employment discrimination in violation of Title VII of 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. The appeal was postmarked September 29, 1999.
Accordingly, the appeal is timely pursuant to 29 C.F.R. � 1614.402(a),
and is accepted in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the basis that the identical issue was previously decided
by the agency.
BACKGROUND
On July 14, 1999, complainant filed a complaint alleging that she was
discriminated against because of her race (Hispanic), color (Brown),
national origin (Mexican American), sex (Female), age (7/15/49), and
reprisal (prior EEO activity pursuant to Title VII and the ADEA) when
she was continuously denied a Transitional Employee (TE) appointment.
Specifically, complainant indicated that her supervisor told her that she
would not be considered for the TE position because if she filed [EEO]
complaints as a Casual Employee, then she would probably do so as a TE.
On appeal, the complainant alleges that the agency unilaterally dropped
her retaliation claim, and incorrectly found that her current claim is
the same as claim #: 1F-901-1795-93, which she filed in 1993.
In the FAD, the agency dismissed complainant's claim pursuant to EEOC
Regulation 29 C.F.R � 1614.107(a), because the complainant stated the
same claim that is pending before or has been decided by the agency
or the Commission. The agency indicated that the issue before the
Commission was accepted and assigned for investigation on November
2, 1993. On December 6, 1994, the complainant and the agency entered
into a settlement agreement which the complainant subsequently alleged
had been breached. The agency issued a final decision on August 3,
1998, determining that the settlement agreement had not been breached.
The agency's records show that the complainant received this decision
on August 6, 1998, but did not appeal the decision.
FINDING AND ANALYSIS
EEOC Regulation 29 C.F.R � 1614.107(a)(1) provides that an agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
A review of the record supports the agency's finding that complainant
raised a claim of discrimination on the same bases as noted above in 1993.
To the extent that complainant had related her current claim to her 1993
claims, the Commission notes that the 1993 claims were settled in December
1994 through a settlement agreement offering the complainant a future TE
appointment. In April 1998, the complainant alleged that the agency had
not complied with the terms of the EEO Settlement. On August 3, 1998,
the agency issued a decision indicating that it was in compliance with
the EEO Settlement. Specifically, the agency pointed to the fact that
in July 1998, the complainant was offered a TE Window Clerk appointment
which she declined because she had another job and had to take care of a
sick child. Complainant indicated that she could only accept a position
on tour 1 or 3. The agency indicated that the settlement agreement did
not specify a particular tour or work location, and as such, had satisfied
the terms of the agreement. The record indicated that the complainant
received this decision on August 6, 1998, and was notified that she had
the right to appeal the agency decision. The record also shows that
complainant did not appeal the decision. Accordingly, complainant cannot
now make a breach allegation regarding the 1994 settlement agreement.
Complainant also alleges that the agency improperly dismissed her
current claim of discrimination by relating it to her 1993 complaint.
The complainant has submitted evidence on appeal that she initiated
EEO Counselor contact on May 26, 1999 about a incident that occurred
on May 14, 1999. After a careful review, we find that the agency's
decision that the claims in the instant appeal regarding the May 14,
1999 incident is subject to dismissal because it is the same as the 1993
complaint is incorrect. Identical does not mean similar. The Commission
has consistently held that in order for a complaint to be dismissed as
identical, the elements of the complaint must be identical to the elements
of the prior complaint in time, place, incident, and parties. See Jackson
v. Department of the Air Force, EEOC Appeal No 01955890 (April 5,1996).
Although complainant previously filed a claim of discrimination on the
same bases as in the present complaint, the prior complaint involved
different incidents. Those incidents arose in 1993. On May 26, 1999,
complainant filed a new claim of discrimination alleging that on May
14, 1999, other employees were awarded TE positions, but that she was
denied an appointment. Moreover, complainant alleged that she was told
by the Acting Supervisor that she did not get the position because of
her prior EEO activity. The record shows that the dates of the alleged
discrimination cited in her prior complaints are not the same as in
the current complaint. Therefore, the matter raised in the instant
complaint is not identical to the claims complainant raised in her
earlier complaints. So, even though complainant may not currently
file a claim requesting enforcement of the 1994 settlement agreement,
she can file a new claim of discrimination if she can show that there
is a new incident of alleged discrimination. Therefore, the agency's
final decision dismissing complainant's complaint was improper.
CONCLUSION
The Commission AFFIRMS the agency finding that it was not in breach of the
1994 settlement agreement. However, we find that the agency's decision
to dismiss complainant's new claim of discrimination on the basis that
it stated a claim previously decided by the agency was improper and is
REVERSED. This claim is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ORDERED to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
__03-28-01________________
Date