Brenda McIver-Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service Agency.

Equal Employment Opportunity CommissionNov 1, 2000
01995857 (E.E.O.C. Nov. 1, 2000)

01995857

11-01-2000

Brenda McIver-Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service Agency.


Brenda McIver-Smith,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

Agency.

Appeal No. 01995857

Agency No. 4C-442-0113-99

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 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)), for untimely EEO contact.<1> According to complainant,

she was discriminated against because of her race (Black), sex (female)

and in retaliation for engaging in previous EEO activity when her requests

for cross-training in the form of details and lateral reassignments were

not granted. The record indicates that the alleged discriminatory events

occurred on March 21, 1996, April 5, 1996, October 27, 1996, December 13,

1996, May 12, 1997, July 21, 1997, November 7, 1997, December 7, 1997,

January 22, 1998, February 28, 1998, March 1, 1998, April 2, 1998, July

10, 1998, and October 2, 1998. Complainant did not initiate contact with

an EEO counselor until February 16, 1999, which was approximately four

months beyond October 2, 1998, the last date her request was not granted.

On appeal, no persuasive arguments or evidence have been presented to

warrant an extension of the time limit for initiating EEO contact.<2>

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

__11-01-00________________

Date

FOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIR.

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER:

01995857

AGENCY NUMBER:

4C-442-0113-99

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMESINITIALDATE REVIEWED(ATTORNEY):LAWRENCE

D. GREEN7/20/00(SUPERVISOR:STEVE ZANOWIC(DIVISION DIRECTOR):MARIE

FITZGERALD

1.) (COMPLAINANT(S)

Brenda McIver-Smith

2.) (AGENCY)

United States Postal Service

3.) (DECISION)

Affirmed

4.) (STATUTE(S)

Title VII

5.) (BASIS(ES)

RB/GF/OR

6.) (ISSUE(S)

T1

7.) (TYPIST/DATE/DISK)

LG0 / 7/20/00

SPELL CHECK:

YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

X 4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 3L - OFO VACATED/REMANDED ALL OF

AGENCY'S MERITS DECISION

? 4Q - COMPLIANCE REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

? 3R - RETURN TO AG FOR CONSOLIDATION

? 3S - RETURN TO AJ FOR CONSOLIDATION

? 7N - CIVIL ACTION FILED

REVISED AS OF 2/3/00

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.

2On appeal, complainant submitted a letter, dated August 13, 1999,

stating that she has developed a stress related condition. According

to complainant, she was �prevented from working since June 24, 1999.�

Complainant also submitted a July 14, 1999 letter from her physician,

B-1. According to B-1, complainant has an emotional condition that is

characterized by anxiety and difficulty with concentration. Consequently,

complainant requested �an extension/postponement of any time limits that

may be in effect . . . .� Because complainant's condition arose after

she contacted an EEO counselor, we do not find that she has presented

an adequate justification for extending the 45-day time limitation

period.