0120081568
05-28-2008
Robin Vallery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robin Vallery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081568
Agency No. 1E-891-0007-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 10, 2008, dismissing her EEO complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In an EEO complaint filed on December 22, 2007, and identified as Agency
No. 1E-891-0007-08, complainant alleged that the agency discriminated
against her on the bases of age (over 40) and reprisal for prior
protected EEO activity when, since October 2004, it failed to hire
her for a full-time Custodial position. Complainant further alleged
that, on October 2, 2007, management told her that she would never
become a Custodian because she is not a veteran. The record shows
that earlier, in April 2005, complainant had initiated contact with
an EEO Counselor alleging that the agency discriminated against her
based on race (unspecified), age, and reprisal when it failed to select
her for a full-time custodial position, but hired veteran applicants.
The agency identified the April 2005 matter as number 4F-890-0064-05.
Complainant later withdrew the pre-complaint.
In its January 10, 2008 final decision, the agency dismissed complainant's
complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same
claim as that identified in pre-complaint 4F-890-0064-05 and that there
is nothing "distinctly different" from the first fact pattern.
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). Here, we note that complainant alleges continuous non-selection
from a time period that encompasses that cited in 4F-890-0064-05 and
does not cite a specific non-selection since that time.
Based on the above, we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 28, 2008
____________________________
Date
__________________
Date
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0120081568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120081568