01992963
04-12-2000
Carolyn R. Pummill, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn R. Pummill, )
Complainant, )
)
v. ) Appeal No. 01992963
) Agency No. 4-F-940-0018-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's February 1, 1999 decision
dismissing the complaint on the basis of untimely EEO counselor
contact is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(2)).<1>
The record shows that Complainant sought EEO counseling on October 14,
1998, claiming that she had been discriminated against on the basis
of physical disability when on September 16, 1997, after reading a
postal article, she became aware that she was entitled to a refund for
overpayment of health plan benefits and the agency failed to provide
her necessary information to effect the refund.
Subsequently, Complainant filed a formal complaint claiming that she
had been discriminated against on the bases of physical disability, and
mental disability when on September 16, 1997, she became aware that she
was entitled to a refund for overpayment of health plan benefits and
the agency failed to provide her the necessary information to effect
the refund.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO counselor contact after finding that Complainant's
initial EEO counselor contact on October 14, 1998, was well beyond
the 45-day time limitation concerning the September 16, 1997 event.
The agency also noted that in March 1994, Complainant had filed a
grievance concerning this matter.
On appeal, Complainant contends that she became aware that she was
entitled to a refund in September 1997, after reading an article in
the Postal Record dated September 1997. She further contends that
her grievance was not filed in March 1994, but acknowledges that from
September 1997 (when she read the postal article) through October 14,
1998, when she finally sought EEO counseling, she �was using as many
�in USPS' agencies as [she] could before going to the EEO�. Finally,
she admits that EEO posters were on display but claims she was �so
traumatized� she could not enter the Postal annex to read the posters.
We have previously held that internal appeals or informal efforts to
challenge an agency's adverse action and/or the filing of a grievance
do not toll the running of the time limit to contact an EEO counselor.
See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038
(June 9, 1989). Accordingly, Complainant's attempt to resolve her
concerns through internal agency procedures is not sufficient to toll the
45-day time limit. Moreover, we are not persuaded by her claim that she
was too traumatized to enter the postal annex and read the EEO posters.
Accordingly, the final agency decision was proper and 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
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).
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:
April 12, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.