01982673
01-12-2000
Lisa Wellington, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lisa Wellington v. United States Postal Service
01982673
January 12, 2000
Lisa Wellington, )
Complainant, )
)
v. ) Appeal No. 01982673
) Agency No. HO-0040-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated February 6, 1998
dismissing complainant's complaint for untimely EEO Counselor contact is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656
(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).<1>
In the complaint complainant claimed that she was discriminatorily
terminated on March 17, 1995. Complainant did not initially contact an
EEO Counselor until November 1996, which was subsequent to the 45 day
time limit set forth in � 1614.105(a)(1). The record shows that the
Letter of Decision - Removal was issued on March 9, 1995. The March 9,
1995 letter stated that complainant was removed effective March 17, 1995.
The March 9, 1995 letter provided complainant with an opportunity to
appeal the decision to Agency Official A. By letter dated March 27,
1995, complainant appealed the removal decision to Agency Official A.
In the March 27, 1995 letter, complainant, among other arguments,
claimed that the agency's action amounted to sex discrimination.
Complainant argues on appeal that the agency failed in its obligation
to inform complainant of her right to file a mixed complaint and that
the agency's failure was reversible error. EEOC Regulation 29 C.F.R. �
1614.302(b) provides:
An agency shall inform every employee who is the subject of an action
that is appealable to the MSPB [Merit Systems Protection Board] and who
has either orally or in writing raised the issue of discrimination during
the processing of the action of the right to file either a mixed case
complaint with the agency or to file a mixed case appeal with the MSPB.
Even if the agency failed to comply with the quoted provision of �
1614.302(b), such a failure by the agency does not extend the time period
for contacting an EEO Counselor in the instant matter. The Commission
notes that complainant has not claimed that she elected to file a mixed
case appeal with the MSPB. Complainant has not shown that she was misled
about her EEO rights and complainant has not claimed that she was unaware
of the time limit for contacting an EEO Counselor. Therefore, we find no
reason to extend the time limit for contacting an EEO Counselor in the
instant matter. Because of our disposition we do not address whether
the agency also properly dismissed the complaint on other grounds.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
Jan. 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date
1On 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.