01a50050
01-05-2005
Teresa M. Lesna, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Teresa M. Lesna v. United States Postal Service
01A50050
January 5, 2005
.
Teresa M. Lesna,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50050
Agency No. 1E-801-0316-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 24, 2004, dismissing her formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), 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.
In her formal complaint, filed on October 28, 2003, complainant claimed
that she was the victim of unlawful employment discrimination on the bases
of race, national origin, sex, color, disability, age, and in reprisal for
prior EEO activity when on February 28, 2003, she was reassigned to the
manual letter operations unit pending a sexual harassment investigation.
The complainant claimed that since she was reassigned to the manual letter
operations unit, she has been subjected to a hostile work environment and
has been denied overtime on a continuing basis since February 28, 2003.
In its August 24, 2004 final decision, the agency dismissed the instant
complaint on the grounds that it addresses the same claims raised by
complainant in a prior complaint, Agency No. 1E-801-0287-03, filed on
July 31, 2003. The record indicates that complainant's prior complaint
is pending a hearing before the Commission.
Equal Employment Opportunity Commission (EEOC) Regulation 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss an entire complaint
that states the same claim that is pending or has been decided by the
agency or Commission. The Commission has held that the same claim is
one that sets forth identical matters. See Terhune v. United States
Postal Service, EEOC Request No. 05950907 (July 18, 1997).
On appeal, complainant alleges that case No. 1E-801-0287-03 is not
identical to the instant complaint. Specifically, complainant's
attorney asserts that the two complaints involve separate adverse
employment actions. A review of record evidence reveals that in her
Agency No. 1E-801-0287-03, complainant claimed that she was subjected to
a hostile work environment after being reassigned to the manual letter
unit pending a sexual harassment investigation. Complainant also alleged
that after being reassigned she was continuously denied overtime and her
duty hours were changed to exclude her from overtime. In the instant
complaint, complainant asserted that after her reassignment pending a
sexual harassment investigation, she was subjected to a hostile work
environment, denied overtime and night differential. The Commission
determines that the instant complaint and Agency No. 1E-801-0287-03
address the same matters.
The Commission finds that the agency's decision dismissing the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was proper and 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
January 5, 2005
__________________
Date