Marilyn Jordan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 28, 2005
01a53288 (E.E.O.C. Jul. 28, 2005)

01a53288

07-28-2005

Marilyn Jordan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Marilyn Jordan v. United States Postal Service

01A53288

July 28, 2005

.

Marilyn Jordan,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53288

Agency No. 4J-604-0040-05

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. In a complaint dated February 23, 2005, complainant

alleged that she was subjected to discrimination on the bases of race

(African-American), sex (female), disability<1> (tendinitis, hyperthyroid

[sic]), and reprisal for prior EEO activity when:

On September 29, 2004 she was issued a removal notice for unacceptable

conduct, which was subsequently upheld following a Step B grievance.

A review of the record shows that complainant initiated the grievance

process on October 5, 2004 and that it was only after the removal was

upheld by letter dated November 4, 2004 that she first contacted an EEO

Counselor, on December 3, 2004. The date of her EEO Counselor contact is

therefore beyond the forty-five (45) day limitation period from the date

of the removal notice. The Commission has consistently held that internal

appeals or informal efforts to challenge an agency's adverse action and/or

the filing of a grievance do not toll the running of the time limit to

contact an EEO Counselor. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal

Service, EEOC Request No. 05880835 (February 2, 1989). Accordingly,

complainant's initial EEO Counselor contact was not timely and the

agency's final decision dismissing complainant's complaint 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

July 28, 2005

__________________

Date

1For purposes of this decision the Commission assumes without finding

that complainant is an individual with a disability. 29 C.F.R. �

1630.2(g)(1).