01A44321_r
10-29-2004
Penny E. Kriesch, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Penny E. Kriesch v. Department of Agriculture
01A44321
October 29, 2004
.
Penny E. Kriesch,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A44321
Agency No. 040140
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 20, 2004, dismissing her complaint of unlawful
employment discrimination. The agency defined complainant's complaint
as alleging that she was subjected to discrimination on the basis of
reprisal for prior EEO activity when:
The Office of the General Counsel (OGC) discriminated against her.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency stated that complainant became aware of the alleged
discriminatory act on March 4, 2003; however, she failed to contact an
EEO Counselor until April 28, 2003, which is beyond the 45-day regulatory
period. Alternatively, the agency dismissed complainant's complaint
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(8),
for alleging dissatisfaction with a previously filed complaint.
On appeal, complainant states that she filed her complaint on December
23, 2003, despite the agency's refusal to participate in Alternative
Dispute Resolution (ADR) as she had requested. Complainant provides a
January 21, 2004 cover letter to a facsimile stating that she discussed
the following three issues with the EEO Counselor at the informal stage:
(1) conflict of interest with Person A, about the handling of her case;
(2) inappropriate behavior on the part of Person A; and (3) refusal
of Person A to accept documents, communications from her while she was
representing herself.
The record contains a copy of complainant's formal complaint faxed to
the agency on December 23, 2003. In the formal complaint, complainant
states that her complaint involves the following two issues: (1)
the management of her EEO complaint by the Office of General Counsel
vis-a-vis the performance of Person A during EEO case proceedings; and
(2) the refusal of OGC to engage, at the informal state, in alternative
dispute resolution/mediation.
Upon review, we find that the agency properly dismissed the present
complaint. The Commission finds that the matters raised in the instant
complaint all concern the processing of a previously filed complaint and
therefore the complaint is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(8). Furthermore, complainant has not shown how she was
aggrieved in her complaint concerning a term, condition, or privilege
of her employment.
Accordingly, the agency's 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
October 29, 2004
__________________
Date