01992868
03-08-2000
Lena M. Carraway, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Area), Agency.
Lena M. Carraway, )
Complainant, )
)
v. ) Appeal No. 01992868
) Agency No. 4-G-770-0654-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Area), )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the agency's November 5, 1998,
final decision dismissing the complainant's complaint was proper.
The agency dismissed the complaint on the basis that it raised the
same claim that is pending before or has been decided by the agency
or Commission pursuant to the provisions of Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107(a)(1)).<1>
The record shows that on August 30, 1998, complainant claimed that she
was discriminated against on the basis of reprisal (prior EEO activity)
when on April 2, 1998, she was issued a letter of warning in lieu of
a seven day suspension for failure to follow instructions and report
for work one hour earlier, and on June 18, 1998, she became aware that
other similarly-situated employees were not disciplined for failure
to follow similar instructions. In a prior complaint filed on May 25,
1998, (Complaint No. 4-G-770-0504-98), complainant claimed that she was
discriminated against based on reprisal for the same reason, that she
was issued a letter of warning on April 2, 1998 for failure to follow
instructions.
The agency issued a final decision dismissing the complaint on the
grounds that the present complaint raised the same matter as the complaint
filed on May 25, 1998, and that a new comparison did not give rise to a
new claim. We agree. The record reflects that the matter raised in the
instant complaint is an elaboration of the matter addressed in Complaint
No. 4-G-770-0504-98.
On appeal, no persuasive arguments or evidence have been presented
regarding whether complainant has stated a new claim, i.e., based on a new
incident to show that complainant was injured by the incident raised.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 8, 2000 ________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Pursuant to our finding, we need not address the agency's alternate
basis for dismissal on untimely EEO counselor contact under the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)).