Diane Willemstyn, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120065318 (E.E.O.C. Feb. 6, 2007)

0120065318

02-06-2007

Diane Willemstyn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Diane Willemstyn,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200653181

Agency No. 4H-335-0134-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated September 17, 2006, dismissing her formal EEO

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq.

In the instant complaint, filed on August 10, 2006, complainant claimed

that she was subjected to discrimination in reprisal for prior EEO

activity when:

on June 20, 2006, her supervisor tampered with evidence for her EEOC

Hearing, for Agency No. 4H-335-0128-05.

The record reflects that complainant claimed that her supervisor removed

an original PS-Form 1564-A, Delivery Instruction, from the route book for

Route 11 which she needed for her EEOC hearing in the above referenced

case.

In its September 17, 2006 final decision, the agency dismissed the

complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state

a claim. The agency concluded that complainant was not aggrieved since

she suffered no harm as a result of the alleged discriminatory action.

The agency also alternatively dismissed the complaint pursuant to

29 C.F.R. � 1614.107(a)(8), on the grounds that this claim allege

dissatisfaction with the processing of a previously filed EEO complaint,

Agency No. 4H-335-0128-05. Specifically, the agency concluded that it

was inappropriate for complainant to address the matters involving her

previous complaint because an EEOC Administrative Judge (AJ) entered a

decision of no discrimination on August 18, 2006. The agency further

concluded that complainant should have raised this claim before the AJ

during the course of her hearing.

On appeal, complainant contends that she was subjected to "a continued

pattern of retaliation and harassment" by her Supervisor. Complainant

further states "the knowledge that she is willing to remove official

documents has negatively affected my work performance." Complainant

states that the Supervisor also did not follow the Overtime Desired List;

and denied her authorized break areas.

EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall

dismiss a complaint that alleges dissatisfaction with the processing of

a previously filed complaint.

Here, complainant claims dissatisfaction with the processing of a

previously filed complaint. Pursuant to 29 C.F.R. � 1614.107(a)(8),

the agency properly dismissed the complaint.

Because we affirm the agency's dismissal for the reason stated herein,

we find it unnecessary to address the agency's alternative disposition

of this complaint.

Finally, we note that on appeal, complainant raises new claims of

harassment relating to additional actions purportedly taken by the

Supervisor. We note that these claims were not previously raised

during the EEO pre-complaint processing, or in the formal complaint.

It is inappropriate for complainant to raise these new claims for the

first time as part of the instant appeal.

The agency's final decision dismissing complainant's complaint for the

reason stated herein is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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

February 6, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

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2

0120065318

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120065318

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0120065318