01992810
08-25-2000
Carolya H. Phillipps Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Western Area), Agency.
Carolya H. Phillipps v. United States Postal Service
01995872
August 25, 2000
.
Carolya H. Phillipps
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01995872
Agency No. 1E-842-0007-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision (FAD) dated July 6, 1999 dismissing her complaint of
unlawful employment discrimination in violation of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> In his complaint,
complainant alleged that she was subjected to discrimination on the
basis of physical disability (Carpal Tunnel) and mental disability
(adult attention deficit disorder, depression) when, on March 2, 1999,
she was issued a letter of warning for using inappropriate language in
the workplace.
The agency dismissed the complaint pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(1)), on the ground that the complaint raised
�an identical claim that has been previously decided by the agency.� The
agency based its decision on the fact that complainant had previously
raised the same claim with an EEO counselor but, after receiving a
�Notice of Right to File,� had failed to file a formal complaint.
On appeal, complainant argues that dismissal of the instant complaint
was improper because �there is no other complaint that addresses the
[letter of warning].�
We conclude that the complaint was properly dismissed, although not
precisely for the reasons cited by the agency. EEOC Regulation 29
C.F.R. � 1614.107(a)(1) upon which the agency relies, requires dismissal
of a complaint that �states the same claim that is pending before or
has been decided by the agency or the Commission.� Complainant's claim
regarding the March 2, 1998 letter of warning is not the subject of
any pending claim nor has it previously been decided by the agency or
the Commission. Accordingly, � 1614.107(a)(1) is inapplicable here.
This error by the agency is harmless, however, because the complaint
could properly have been dismissed pursuant to 29 C.F.R. � 1614.107(a)(2)
which authorizes dismissal of a complaint that �fails to comply with
the applicable time limits contained in �� 1614.105, 1614.106 and
1614.204(c).� Section 1614.106(b) provides that a �complaint must
be filed within 15 days of receipt of [a notice of right to file].
The record shows that complainant received a notice of right to file
concerning her letter of warning claim on May 1, 1999. She did not
file a complaint within the 15-day time limit. Having abandoned her
claim by failing to timely file a complaint, complainant is barred by
� 1614.107(a)(2) from filing any subsequent complaint raising the same
claim. See Robinson v. Peace Corps, EEOC Request No. 05940710 (May 2,
1995).
Accordingly, the agency's dismissal of the complaint was proper and the
FAD is hereby 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
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).
COMPLAINANT'S 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, Director
Office of Federal Operations
August 25, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.