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.