0120112456
02-08-2012
Tracey L. Thompson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Tracey L. Thompson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120112456
Agency Nos. 4F-940-0207-08 and 4F-940-0075-09
Hearing Nos. 550-2010-00128X and 550-2010-00105X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the February
18, 2011 Final Decision finding no discrimination with regard 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. For the following reasons, Complainant’s
appeal is DISMISSED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part Time Regular Mail Handler at the Agency’s SFC-Napoleon Street
Annex facility in San Francisco, California. Complainant filed formal
complaints alleging that the Agency subjected her to discrimination on
the bases of disability and in reprisal for prior protected EEO activity
under Section 501 of the Rehabilitation Act of 1973 when:
1. Complainant has been forced to perform the work of two men without
any assistance;
2. On or around July 21, 2008, Complainant’s request to fill a vacant
position at a smaller station was denied;
3. Since on or about February 19, 2008, Complainant has been subjected to
harassment in regard to: working conditions and instructions; preferential
treatment of co-workers; held to a higher standard than her peers;
threatened and denied union representation;
4. Complainant was issued a Letter of Warning on May 12, 2009,
for failure to follow instructions; and
5. Complainant was issued a Letter of Warning on September 3,
2009 for irregular attendance.
On April 6, 2011, Complainant filed a civil action (identified as Civil
Action No. C11-01670 EDL) in the United States District Court for the
Northern District of California. The record further discloses that the
claims raised therein encompass those raised in the instant complaint.
The regulation found at 29 C.F.R. § 1614.409 provides that the filing
of a civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a Complainant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of the
federal district court. See Stromgren v. Dep’t of Veterans Affairs,
EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice,
EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv.,
EEOC Request No. 05880114 (October 25, 1988).
CONCLUSION
Complainant’s appeal is DISMISSED. See 29 C.F.R. § 1614.409.
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
February 8, 2012
__________________
Date
2
0120112456
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120112456