Carolyn O. Hayden, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 13, 1998
01982256 (E.E.O.C. Nov. 13, 1998)

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.)