01982256
11-13-1998
Carolyn O. Hayden, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn O. Hayden v. United States Postal Service
01982256
November 13, 1998
Carolyn O. Hayden, )
Appellant, )
)
v. ) Appeal No. 01982256
) Agency No. 1-I-631-0135-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons set forth below, the Commission finds the agency
committed no reversible legal error in its January 28, 1998 final decision
dismissing appellant's November 16, 1997 formal EEO complaint. We accept
appellant's January 30, 1998 appeal as timely, pursuant to EEOC Order
No. 960, as amended.<1>
In her complaint, appellant alleged that, for prohibited reasons, she
was discriminated against when "[f]alse testimony given at the court
hearing 7/21/97. Witnesses were pressured to tell untrusts [sic]."
With regard to the requested relief in this case, appellant sought
certain specified remedies "as requested in original case."
The FAD dismissed appellant's complaint pursuant to 29 C.F.R.
�1614.107(a), in pertinent part, for raising the same claim pending in
an EEOC administrative hearing. The FAD stated that an EEO Counselor
had advised appellant that objections with regard to the hearing should
be addressed by the EEOC administrative judge (AJ) or the Commission's
Office of Federal Operations.
We agree with the FAD's dismissal of appellant's complaint, but find
the agency should have dismissed the complaint for failure to state a
claim, also pursuant to 29 C.F.R. �1614.107(a), in pertinent part.<2>
We find appellant's complaint to be an improper attack on the agency's
prosecution of its defense to appellant's case before an EEOC AJ.
See Briand v. U.S. Postal Service, EEOC Request No. 05940620 (May 4,
1995) (citation omitted); Thomas v. Department of the Army, EEOC Request
No. 05950587 (April 24, 1997).
The FAD, as modified, is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1We note that appellant, who raised no new contentions on appeal,
designated counsel in this matter during EEO counseling. We also note no
involvement by appellant's purported counsel in this matter, or any
documents filed with counsel by the agency as required under 29 C.F.R.
�1614.605(d). The Commission's regulations at 29 C.F.R. �1614.605(e)
provide that "[t]he Complainant shall at all times be responsible for
proceeding with the complaint whether or not he or she has designated a
representative." Appellant has not raised on appeal the issue of the
agency's apparent failure to serve her attorney. In light of our decision
in this matter, for reasons stated above, such an omission by the agency
is not relevant.
2See Hammond v. FDIC, EEOC Request No. 05960124 (Nov. 13, 1997) n.1,
for the proposition "that the Commission can properly determine that
a complaint or allegation therein fails to state a claim within the
meaning of the EEOC Regulations even when the agency's dismissal of the
complaint was based upon another rationale." (Citations omitted.)