01990988
09-10-1999
Martha Jean Dizard, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martha Jean Dizard v. United States Postal Service
01990988
September 10, 1999
Martha Jean Dizard, )
Appellant, )
)
v. ) Appeal No. 01990988
) Agency No. 1-C-441-0189-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 9, 1998, appellant filed an appeal with this Commission from
a final agency decision (FAD) dated October 5, 1998, pertaining to her
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et
seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq.<1> In her complaint, appellant alleged
that she was subjected to discrimination on the bases of physical
disability, age, and in reprisal for prior EEO activity when:
On June 30, 1998, appellant lost eight (8) hours pay plus night
differential due to late delivery of a letter instructing appellant to
return to work;
On June 30, 1998, appellant received a letter reducing her removal to
a time served suspension; and
On July 4, 1998, appellant was told to get off the clock after working
ten (10) units.
The agency accepted allegations (1) and (3), but dismissed allegation
(2) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for stating
the same claim raised in Agency Number 1-C-441-0153-98. Specifically,
the agency found that appellant's prior complaint involved the Notice
of Removal that was reduced in the incident described in allegation (2).
On appeal, appellant appears to believe that her entire complaint was
canceled.<2> Appellant also alleges that the EEO Counselor improperly
processed her complaint.
The record includes appellant's formal complaint for Agency Number
1-C-441-0153-98, which alleges that appellant was subjected to
discrimination when she received a Notice of Removal, effective May 20,
1998. The record also includes a letter, dated June 26, 1998, which
informs appellant that her Notice of Removal, which became effective
May 20, 1998, was reduced to a suspension for the time already served.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
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. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
Appellant's prior complaint and allegation (2) both concern discipline
given to appellant because of the same underlying circumstances.
Accordingly, the agency properly dismissed allegation (2).
Regarding appellant's allegation of improper processing, if a complainant
is dissatisfied with the processing of her pending complaint, she
should be referred to the agency official responsible for the quality
of complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO MD 110 (4-8). Furthermore, any
remedial relief to which appellant would be entitled would necessarily
involve the processing of the underlying complaint.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision. See, 29 C.F.R. �1614.402.
2The Commission notes, however, that only one allegation of appellant's
complaint was dismissed.