Lisa Wellington, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01982673 (E.E.O.C. Jan. 12, 2000)

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.