0120070043
02-06-2007
Marilyn S. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marilyn S. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070043
Agency No. 4C-280-0107-06
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision (FAD)
dated September 12, 2006, 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. In her complaint,
complainant alleged that she was subjected to discrimination based on her
sex (female) when she learned in May 2006, that though a male coworker's
pay was reduced due to a National Mail Count, it was later corrected,
but her pay was reduced for approximately one year, from May 24, 2002
through April 25, 2003, for the same reason and she did not receive a
pay adjustment. She also contended in her complaint that her schedule
was changed pursuant to the same action.
The FAD dismissed the complaint on the grounds that she previously filed
another complaint on the same matter. 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. It has long been established that "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) rev'd on other grounds
EEOC Request No. 05960524 (April 24, 1997). Such is the case here.
In complaint 4C-280-0022-03, complainant alleged that she was
discriminated against based on disability when on May 24, 2002, and
thereafter she was paid less than her evaluated rate of pay and (2)
her work hours were changed due to a route evaluation. The work hour
change involved moving from a five day week to a six day work week of 43
hours.1 In Thompson v. United States Postal Service, EEOC Appeal No.,
EEOC Appeal No. 01A43192 (June 30, 2005), request for reconsideration
denied, EEOC Request No. 05A51062 (August 10, 2005) the Commission upheld
the finding of an EEOC Administrative Judge finding no discrimination
on complaint 4C-280-0022-03. Based on our review, we conclude that the
agency was correct in dismissing the instant complaint on the grounds
that complainant already raised the same matter in the above-described
prior complaint.
The FAD is affirmed.
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
February 6, 2007
__________________
Date
1 The newer complaint and counselor's report suggests that the work hour
change was of limited duration.
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0120070043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120070043