01A20394_r
08-26-2002
Cheryl E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cheryl E. Williams v. United States Postal Service
01A20394
August 26, 2002
.
Cheryl E. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20394
Agency No. 4C-150-0106-01
DECISION
On October 22, 2001, complainant filed a timely appeal with this
Commission from an agency decision pertaining to her complaint of
unlawful employment discrimination in violation of 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On August 17, 2001, complainant filed a formal complaint based on sex,
age, disability, and in reprisal for prior protected activity. The agency
framed the claims as follows:
(1) the Postal Service failed to abide by the April 27, 2001 settlement
in complainant's prior case;
(2) on May 30, 2001, the Pittsburgh District EEO Manager conferred with
the District Human Resources Manager about complainant's prior EEO case;
(3) on May 23, 2001, the District Human Resources manager failed to
issue a decision on the Notice of Proposed Demotion within thirty days;
(4) on June 22, 2001, complainant was issued a Notice of Decision
downgrading her; and
(5) on or about May 26, 2001, the Postal Service violated the terms of
complainant's settlement agreement.
On September 24, 2001, the agency issued a decision dismissing the
complaint. Specifically, claims (1) and (5) were dismissed on the
ground that they stated the same that is pending before the Commission.
According to the agency, those claims concerned complainant's allegation
of breach which was appealed to the Commission, and identified as
Appeal Number 01A14583. Claims (1) and (2) were dismissed for alleging
dissatisfaction with the processing of a prior complaint. The agency
determined that the claims concerned what complainant considered improper
and discriminatory handling of her previous EEO complaint. Finally,
the agency dismissed claims (3) and (4) for raising the matters in an
appeal to the MSPB (Merit Systems Protection Board).
Claims (1) and (5)
The agency dismissed claims (1) and (5) pursuant to 29 C.F.R. �
1614.107(a)(1). 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.
A review of Commission records indicate that complainant filed an appeal
regarding the alleged breach of an April 27, 2001 settlement agreement,
Appeal Number 01A14583. Complainant, through her attorney, argues that
the agency erroneously defined the claims. However, she asserts that the
�instant complaint alleges that the agency's failure to perform acts as
required under the terms of the settlement agreement . . . constitute
additional acts of reprisal.� Therefore, because claims (1) and (5)
concern the alleged violation of the April 27, 2001 settlement agreement,
we find that the agency properly dismissed the claims pursuant to 29
C.F.R. � 1614.107(a)(1).
Because we affirm the agency's dismissal of claim (1) for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds for this claim.
Claim (2)
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall
dismiss claims alleging dissatisfaction with the processing of a prior
complaint. Dissatisfaction with the EEO process must be raised within
the underlying complaint, not as a new complaint. See EEOC - Management
Directive 110 (as revised Nov. 9. 1999) 5-23, 5-25 to 5-26.
Complainant states on appeal that, regarding claim (2), she suffered
reprisal and discrimination when the EEO Manager conferred with and
took directions from a responsible management official, the HR Manager,
with respect to the processing of her subsequent complaints and the
re-opening of her settled complaints. The Commission finds that claim
(2) concerns the processing of her prior complaint, and therefore,
the agency's dismissal was proper.
Claims (3) and (4)
An aggrieved person may initially file a mixed case complaint with
an agency or may file a mixed case appeal directly with the MSPB,
pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b).
The regulation set forth at 29 C.F.R. � 1614.107(a)(4)) provides that an
agency shall dismiss an EEO complaint where the complainant has raised
the matter in an appeal to the MSPB.
With respect to claim (3), complainant asserts that she appealed her
demotion to the MSPB, but that the responsible management official's
unauthorized procedure of issuing a letter, without new notice of proposed
action is �evidence of discriminatory intent, in support of the MSPB
claim, that the demotion is contrary to merit principles.� Therefore,
the Commission finds that claim (3) concerns the matter that was appealed
to the MSPB. Accordingly, the agency's dismissal of the claim was proper.
In claim (4), complainant claims she suffered discrimination when on June
22, 2001, she was issued a Notice of Decision regarding a downgrade.
The record contains a copy of complainant's appeal to the MSPB, which
reveals that the appealed action was the June 22, 2001 �Letter of Decision
- Adverse Action - Reduction in Grade�. Consequently, we find that
the claim was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4)
since complainant has chosen a non-EEO process to address her demotion.
Based on a review of the entire record, including arguments and evidence
not specifically addressed herein, the Commission AFFIRMS the agency's
dismissal of the complaint.
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
August 26, 2002
__________________
Date