Marilyn S. Thompson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120070043 (E.E.O.C. Feb. 6, 2007)

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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2

0120070043

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120070043