01984372
10-27-1999
Chivonne K. Washington, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Chivonne K. Washington v. United States Postal Service
01984372
October 27, 1999
Chivonne K. Washington, )
Appellant, )
)
v. ) Appeal No. 01984372
) Agency No. 1-A-106-0014-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's April 13, 1998 decision dismissing
appellant's complaint on the grounds of untimely EEO counselor contact and
mootness, is proper pursuant to the provisions of 29 C.F.R. �1614.107(a)
and (e).
The record shows that appellant sought EEO counseling on November 5,
1997, alleging that she had been discriminated against on the basis of
sex (sexual harassment) when on October 26, 1997, she complained to the
Manager of Distribution Operations (MDO) about being sexually harassed by
another employee, and she neglected and ignored appellant's complaint.
The record contains a Certified Mail Return Receipt which shows that on
November 14, 1997, appellant received a copy of the information booklet
"What You Need to Know about EEO". On December 22, 1997, appellant was
issued the Notice of Right to File Individual Complaint in which she
was advised about her right to file a formal complaint of discrimination
concerning the issues she had raised with the EEO counselor. The notice
also advised her that her complaint had to be filed within 15 calendar
days of the date she received the notice.
No formal complaint was filed by appellant within said 15-day time limit.
Instead, on January 6, 1998, appellant sought EEO counseling alleging
that she had been discriminated against on the basis of reprisal when: (1)
On November 2, 1997, appellant complained to the Manager of Distribution
Operations (MDO) about being sexually harassed by another employee on
October 26, 1997, and the MDO neglected and ignored appellant's complaint;
and (2) on December 29, 1997, appellant received a letter of instruction
from the Plant Manager informing her of his intentions to issue letters of
warning to accident repeaters. Appellant further alleged that the letter
in question raised safety issues. Finally, appellant alleged that this
was one example of the constant harassment against her.
Subsequently, appellant filed a formal complaint of discrimination
alleging that she had been discriminated against on the bases of race
(none specified), sex (female) and reprisal for prior EEO activity.
In her formal complaint appellant raised the same two allegations she
had brought to the attention of the EEO counselor on January 6, 1998.
The agency issued a final decision dismissing allegation (1) on the
basis of untimely EEO counselor contact. Allegation (2) was dismissed
on the grounds of mootness after the agency found that the letter
of instruction had been removed from appellant's file pursuant to a
negotiated grievance.
On appeal, appellant contends that she was unaware of the 45-day time
limit and that she was "misinformed" concerning her EEO rights.
The record shows that allegation (1) concerns an incident which
allegedly occurred on October 26, 1997. Appellant sought EEO counseling
concerning said issue in November 1997, and was issued a notice of her
right to file a formal complaint on December 22, 1997. Nevertheless,
appellant did not file a formal complaint of discrimination within 15
days of December 22, 1997. On January 6, 1998, appellant once again
sought EEO counseling concerning the issue she had previously raised in
November 1997. On appeal, appellant claims that she was unaware of the
45-day time limit and that she was "misinformed" about the EEO process.
Appellant's argument is not persuasive because the record shows that after
seeking EEO counseling in November 1997, the agency provided her with a
copy of a booklet titled "What You Need to Know About EEO". Accordingly,
appellant was properly advised by the agency concerning her rights
under EEOC Regulations. Moreover, the notice of the right to file
an individual complaint advised appellant that a formal complaint
needs to be filed within 15 calendar days of receipt of the notice.
Appellant failed to file a formal complaint of discrimination within 15
calendar days of the date she received the notice of the right to file.
Instead, she contacted an EEO Counselor on January 6, 1998, and raised
the same issue concerning the alleged incident on October 26, 1997.
We hereby affirm the dismissal of allegation (1).
We find that allegation (2) was properly dismissed on the grounds of
mootness. Appellant alleged that she had been discriminated against
on the bases of race, sex and reprisal when she was issued a letter of
instruction which was placed in her personnel file and which raised safety
issues. Appellant also claimed that this was part of the harassment
against her. The record shows that appellant was issued a letter of
instruction in which she was advised about safety issues and was informed
that a letter of warning would be issued. According to the Counselor's
Report, after the letter in question was placed in her personnel file, it
was subsequently removed through a grievance. Appellant has not challenged
the agency's findings regarding allegation (2), and she acknowledged
in her complaint that the letter was removed pursuant to a grievance.
We therefore find that allegation (2) is moot. Accordingly, the final
agency decision is 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. �l6l4.604(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:
10/27/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations