0120101249
04-11-2011
Victoria A. Rice, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Victoria A. Rice,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120101249
Agency No. 1K211001010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 11, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part Time Regular Clerk at the Agency's processing and distribution
facility in Baltimore, Maryland.
On December 26, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the basis of sex
(female/pregnancy) when she was issued a removal notice dated December
24, 2008, for failure to maintain a regular work schedule. The Agency
dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) for stating
the same claim as an earlier complaint and for untimely EEO counselor
contact. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
an agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
The record in the instant matter contains documents indicating that
Complainant had previously raised the issue of her removal in an earlier
complaint, designated as Agency No. 1K-211-0049-09, which she voluntarily
withdrew on August 8, 2009. Complainant had also filed a grievance under
the collective bargaining agreement on the removal. Complainant states
her representative lost her grievance, and advised her to file an EEO
complaint, and she did so when she did not get reinstated. After careful
review of the record, the Commission finds that the instant complaint
is identical to Complainant's earlier complaint, which she voluntarily
withdrew.
In past cases, the Commission has found that where a complainant knowingly
and voluntarily withdraws her complaint, the Commission considers the
matter to have been abandoned. See Pedro D. Tellez v. Department of
Transportation, EEOC Request No. 05930805 (February 25, 1994). Complainant
may not request reinstatement of an informal complaint. See Allen v,
Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Once
a complainant has withdrawn an informal complaint, absent a showing of
coercion, a complainant may not reactivate the EEO process by filing
a complaint on the same issue. Id. To allow such a practice would, in
effect, extend the limitations period for filing a formal complaint ad
infinitum and subvert the need for timeliness and efficiency in the EEO
process.
In addition, EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. Complainant did not seek EEO counseling on the instant
complaint until August 2, 2009, over seven months after she received the
notice of removal. Complainant's reliance on the grievance process to
resolve her claims does not excuse an untimely EEO Counselor contact.
The Commission has consistently held that the utilization of agency
procedures, union grievances, and other remedial processes does not toll
the time limit for contacting an EEO Counselor. See Ellis v. United
States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 11, 2011
__________________
Date
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0120101249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101249