01985489
11-20-1998
Linda F. Wafer v. United States Postal Service
01985489
November 20, 1998
Linda F. Wafer, )
Appellant, )
)
v. ) Appeal No. 01985489
) Agency No. 4-G-700-1309-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Areas), )
Agency. )
______________________________)
DECISION
On July 31, 1996, Linda F. Wafer (appellant), timely appealed the agency's
final decision dismissing appellant's EEO complaint on the grounds of
untimeliness. The Commission hereby accepts the appeal in accordance
with the provisions of EEOC Order No. 960.001.
The record reveals that appellant contacted an EEO Counselor on August 2,
1995 and alleged discrimination on the basis of race when she was
informed that a coworker's bid job was altered to include duties of DSIS,
and truck card, and she (appellant) was not afforded the same preferred
assignments. On July 24, 1996, the agency issued a final agency decision
(FAD), which dismissed appellant's complaint for untimely EEO contact.
According to the agency, appellant was aware of the alleged discrimination
at issue in January 1995 as she filed a grievance on the same issue on
January 13, 1995.
The record does not contain a copy of the grievance filed by appellant on
January 13, 1995. However, appellant states on the EEO informal complaint
form that, in January 1995, she filed a grievance on the same issue as
that raised in the informal complaint. On appeal, appellant contends
that the answer she received via the grievance process was so vague
that it had no real meaning. Appellant also indicates that she filed
the EEO complaint because of the length of time it took management and
the Union to reach a solution and because of the unsatisfactory service
she received under the grievance process.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that an aggrieved
person bring an alleged discriminatory act to the attention of the EEO
Counselor within 45 calendar days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
calendar days of the effective date of that action. We find that the
agency properly dismissed appellant's complaint. While the record does
not contain a copy of the grievance appellant filed in January 1995,
we find that appellant's own admissions in the informal complaint form
and on appeal, and the record as a whole, provide sufficient evidence
on which to base our decision. Accordingly, the decision of the agency
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. �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:
Nov 20, 1998
_______________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations