01986711
12-22-1999
Rebecca Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rebecca Brown, )
Complainant, )
)
v. ) Appeal No. 01986711
) Agency Nos. GA-97-010
William J. Henderson, ) GA-97-030
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed the instant appeal from two agency decisions concerning
two separate complaints.<1>
Agency No. GA-97-010
Complainant filed the instant appeal concerning GA-97-010 on September 8,
1998 from the agency's May 28, 1997 decision concerning complainant's
complaint. Complainant wrote a letter to the agency dated June 2, 1997
regarding the May 28, 1997 decision. Therefore, we find that complainant
received the May 28, 1997 decision by June 2, 1997. The Commission
finds that complainant failed to file the instant appeal within the 30
day time limit for filing the appeal set forth in 64 Fed. Reg. 37,644,
37659 (to be codified as 29 C.F.R. � 1614.402(a)). Complainant has not
shown that she was so incapacitated that she was unable to timely file
the appeal with the Commission. The instant appeal concerning GA-97-010
is DISMISSED pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37659 (to be codified as 29 C.F.R. � 1614.403(c)).
Agency No. GA-97-030
The agency issued a decision dated January 14, 1998 dismissing a portion
of complainant's complaint. Although direct appeals of decisions
partially dismissing a complaint are no longer permissible under the
regulations revised on November 9, 1999, Commission records show that
the merits of the remainder of the complaint was the subject of an
agency decision on September 21, 1998. Therefore, we shall adjudicate
the instant appeal because there are no claims in the instant complaint
pending before the agency or an EEOC Administrative Judge.
The Commission rejects complainant's argument that a subsequent decision
issued by the agency on the merits of the non-dismissed claims in the
complaint constituted a rescission of the January 14, 1998 decision.
The Commission also rejects the agency's claim that the instant appeal
was untimely filed, because the agency has not shown when complainant
received the January 14, 1998 decision.
The agency found that complainant's claim that the agency discriminatorily
dismissed some claims in a prior complaint failed to state a claim.
The Commission agrees that this claim is properly dismissed 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)(1)) for failing to state
a claim, because the claim is an improper collateral attack on a prior
agency decision.
The other two dismissed claims concerned improper processing of
complainant's complaints. The agency also stated in the decision that
these two claims would be processed as a new case. On appeal the agency
states, and the record shows, that the agency attempted to initiate
counseling concerning these two improper processing claims, but that the
attempt failed. Despite the agency's attempt to provide processing of
these two allegations, the agency did "dismiss" these two claims from
the instant complaint. To the extent that these two claims concern
dissatisfaction with the processing of a previously filed complaint,
the Commission finds that these two claims are properly dismissed
pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656 (to
be codified as 29 C.F.R. �1614.107(a)(8)). To the extent that these
two claims concern dissatisfaction with the processing of the instant
complaint, the Commission finds that these two claims are properly
dismissed for failing to state an independent claim of discrimination.
29 C.F.R. �1614.107(a)(1). Such a claim of improper processing of
the instant complaint should be raised during the processing of the
underlying claims in the complaint that were accepted for investigation.
Thus, such claims can be raised with the administrative judge, or, as
is possible in the instant matter, with the Commission on appeal from
an agency decision on the merits of the underlying claims.
The agency's January 14, 1998 decision dismissing a portion of 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:
Dec. 22, 1999
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.