0120142349
10-17-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120142349
Agency No. 4C-440-0046-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 13, 2014, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Collinwood Station, in Cleveland, Ohio.
On April 26, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and age when:
on September 3, 2010, she was put off the clock as part of the National Reassessment Process (NRP) and has not been permitted to work since.
On May 13, 2014, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that this formal complaint raises the same claim that had been raised in her prior informal EEO complaint, identified as Agency No. 4C-440-0002-11.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R.�1614.107(a) (1) provides that an agency shall dismiss an entire complaint that states same complaint that is pending before or has been decided by the agency or Commission.
The record shows that Complainant filed an informal complaint, Agency Case No 4C-440-0002-11 on October 10, 2010, and she was issued a Notice of Right to File a Complaint on October 26, 2010. Complainant chose not to pursue that prior matter, and Agency Case No. 4C-440-0002-11 was therefore closed. In the instant formal complaint, Complainant asserted that she subsequently learned that a coworker who had been part of the NRP in her facility was returned work. The Agency determined that although the co-worker was part of the NRP, she never stopped working and she was classified as a Part Day employee.
The Commission finds that the instant complaint states the same matter in Complainant's prior informal complaint Agency case NO. 4C-440-0002-11. Complainant had ample opportunity to pursue the subject claim in 2010, but chose not to do so. We further determine that there has been no change in circumstances that would differentiate the prior claim from the subject claim.
The Agency's final decision dismissing the formal complaint for the reason discussed herein 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
October 17, 2014
__________________
Date
2
0120142349
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142349