Barbara Stephenson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01985421 (E.E.O.C. Jan. 24, 2000)

01985421

01-24-2000

Barbara Stephenson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Barbara Stephenson v. United States Postal Service

01985421

January 24, 2000

Barbara Stephenson, )

Complainant, )

)

v. ) Appeal No. 01985421

William J. Henderson, ) Agency No. HI003398

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On July 2, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) dated June 3, 1998, pertaining to her

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et

seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq.<1>

The record indicates that initially complainant filed three separate

complaints alleging that she was subjected to discrimination on the bases

of race (Negroid), color (darker), religion (non-denominational), national

origin (African-American), sex (female), age (42), physical disability

(bilateral carpal tunnel syndrome/cubic elbow), mental disability (stress)

and in retaliation for prior EEO activity. In complaint 1G-754-0126-97,

dated August 5, 1997, complainant alleged that she was subjected to

discrimination when:

On June 23, 1997, complainant's rights under the Privacy Act were

violated when the postal inspectors subpoenaed copies of her records.

In complaint 1G-754-0043-97, dated March 4, 1997, and stamped as

received April 21, 1997, complainant alleged that she was subjected to

discrimination when:

On January 10, 1997, complainant was held against her will by the

postal inspector and not allowed representation.

In complaint 1G-754-0043-97,<2> dated March 4, 1997, and stamped as

received March 14, 1997, complainant alleged that she was subjected to

discrimination when:

On January 10, 1997, complainant was placed off the clock without

explanation.

The agency combined complainant's three separate complaints into a single

complainant under agency number HI003398. In a final agency decision,

the agency dismissed issue (1) for failure to state a claim, issue (2)

for untimely filing, and issue (3) for presentation of an identical issue.

Specifically, with regard to issue (1), the agency found that complainant

did not suffer personal harm or loss with respect to a term, condition,

or privilege of employment. With regard to issue (2), the agency found

that complainant did not file her formal complaint in a timely manner.

The agency stated that complainant received her notice of the right to

file a formal complaint on March 4, 1997, but did not file her formal

complaint until April 17, 1997, seventeen days after the fifteen-day

time period for timely filing a complaint. With regard to issue (3),

the agency argued that this issue was identical to an issue, agency number

1G-754-0042-97, pending before the Commission in EEOC Appeal No. 01994617.

On appeal, complainant, through her attorney, challenges the agency's

dismissal of issue (2). Complaint claims that she filed her formal

complaint containing issue (2) on March 12, 1997, and not, as the agency

claims, on April 17, 1997. In support of her argument, complainant

includes a copy of the receipt for the certified mail which contain

her formal complaint, indicating receipt by the agency on March 12,

1997; a copy of her formal complaint of discrimination dated March 4,

1997; a copy of a letter dated March 12, 1997, from the attorney to the

agency stating that complainant was filing three complaints for agency

numbers 1G-754-0042-97, 1G-754-0043-97, and 1G-754-0055-97; and a copy

of a letter from the EEO Compliance and Appeals Coordinator dated June

3, 1997, addressed to complainant which indicates that case number

1G-754-0043-97 (later combined with 1G-754-0126-97 to form HI003398)

was being forwarded to the EEO Unit in Washington, D.C.

In response to complainant's appeal, the agency states that a formal

complaint containing issue (3), not issue (2), was mailed on March 12,

1997, and stamped received on March 14, 1997. The agency contends

that the record shows that the formal complaint containing issue (2)

was stamped by the agency on April 21, 1997, and the envelope in which

it was received was postmarked April 17, 1997. The record includes a

copy of the complaint raising issue (2), which is stamped as received

on April 21, 1997, and an envelope from complainant's attorney to the

agency's EEO Complaint Processing office postmarked April 17, 1997.

Initially, we note that complainant is not disputing the agency's

dismissal of issues (1) and (3). Therefore, we will not address the

propriety of the dismissal of these issues in our decision herein.

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written

complaint with an appropriate agency official within fifteen (15) calendar

days after the date of receipt of the notice of the right to file a formal

complaint. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency

shall dismiss a complaint that fails to comply with the applicable time

limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the

agency extends the time limits in accordance with � 1614.604(c).

The record indicates that complainant received a notice of the right

to file a formal discrimination complaint on March 4, 1997. The notice

informed complainant that she had fifteen days from the date of receipt of

the notice in which to file a formal complaint or until March 19, 1997,

to timely file her complaint. While complainant submits a letter which

accompanied three of her complaints, including one with agency number

1G-754-0043-97, we note that both complaint forms for issues (2) and

(3) contain the same agency number.<3> The complaint form containing

issue (2) is stamped as received by the agency on April 21, 1997, and the

agency includes in the record a copy of the envelope in which the form was

received, which contains a postmark of April 17, 1997. The preponderance

of the evidence indicates that the formal complaint for issue (2) was

filed on April 17, 1997, beyond the fifteen-day time limit. Accordingly,

the agency's final decision to dismiss issue (2) is hereby AFFIRMED.

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:

January 24, 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.

2We note that complainant's attorney used the same agency number on both

the complaint forms filed on issues (2) and (3).

3Upon review of the record in the present case, as well as that submitted

for EEOC Appeal No. 01994617, it appears that complainant's attorney used

the wrong agency number on the complaint form submitted for issue (3)

in the present case, since the same issue is presented on the complaint

form for agency number 1G-754-0042-97, which is pending in EEOC Appeal

No. 01994617. We note that the complaint form in 1G-754-0042-97 is also

dated March 4, 1997, and was submitted to the agency on March 12, 1997,

and received March 14, 1997.