0120073433
11-15-2007
Fayralyn A. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Fayralyn A. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073433
Agency No. 4B-040-0028-06
Hearing No. 520-2007-00337X
DECISION
Complainant timely initiated an appeal from the agency's final action concerning her equal employment opportunity (EEO) 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
On November 18, 2006, complainant filed the instant formal complaint. Therein, complainant claimed that she was the victim of unlawful employment discrimination on the bases of disability (cumulative trauma syndrome, tendonitis and stress) and in reprisal for prior EEO activity when:
(1) on June 2, 2006, she was scheduled to attend a Functional Capacity Examination;
(2) on September 13, 2006, she was informed that her bid assignment was abolished; and
(3) she heard that she was talked about like she was less than a human being.
On December 7, 2006, the agency issued a partial dismissal. The agency accepted claims (1) and (2) for investigation. The agency dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that complainant was not aggrieved.
At the conclusion of the investigation of claims (1) and (2), complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). On June 7, 2007, the AJ issued a decision without a hearing and dismissed claims (1) - (2). The AJ dismissed claim (1) for raising the same claim that is pending before or has been decided by the agency or the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1); and the AJ dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(5), for claiming a proposed personnel action.
On June 25, 2007, the agency issued a final action implementing the AJ's decision, which is the subject of the instant appeal.
Claim (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.
In the instant case, complainant raises the same claim as set forth in Agency Case No. 4B-040-0019-06. The record contains a copy of a decision by an EEOC Administrative Judge (AJ) for Agency Case No. 4B-040-0019-06 dated February 7, 2007. Therein, the AJ framed the claim in Agency Case No. 4B-040-0019-06 as "complainant claims discrimination based on physical disability and in retaliation for prior EEO activity when she was forced to submit to a Functional Capacity Evaluation on March 28, 2006." The record supports a finding that claim (1) is merely an elaboration of the matter raised in Agency Case No. 4B-040-0019-06. The AJ properly dismissed claim (1) for raising the same claim in a prior EEO complaint.
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory.
A review of the record reveals that the agency erroneously issued complainant a letter dated September 13, 2006 notifying her that her bid assignment would be abolished effective September 15, 2006. There is no evidence in the record showing that the abolishment of complainant's bid assignment has actually occurred
Accordingly, the agency's final action implementing the AJ's dismissal of claims (1) and (2) is AFFIRMED.1
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
November 15, 2007
__________________
Date
1 On appeal, complainant does not challenge a December 7, 2006 partial dismissal issued by the agency, regarding one claim (claim (3)); therefore, we have not addressed this issue in our decision.
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0120073433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073433