Robin Scott, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 30, 2009
0120092714 (E.E.O.C. Nov. 30, 2009)

0120092714

11-30-2009

Robin Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robin Scott,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120092714

Agency No. 4F900016909

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 5, 2009, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as

amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(2), for untimely EEO Counselor contact. In her complaint,

complainant alleged that she was subjected to discrimination on the

bases of disability (Breast Cancer) and reprisal for prior protected

EEO activity under a statute that was unspecified in the record when:

1. In August 2007 complainant's hours were reduced; and

2. Complainant was forced to take disability retirement effective June

19, 2008.

The agency dismissed the claims for untimely EEO Counselor and also found

that with regard to the reduction in hours, complainant was stating the

same claim as a claim she had previously filed before the Merit Systems

Protection Board (MSPB). We note initially that in her Formal Complaint,

complainant explicitly states that she was denied work in January 2009.

In a footnote, the agency acknowledges that complainant identified

the date of the incident as January 2009 but further states "however

this appears to be the approx. [sic] timeframe during which she filed

her MSPB appeal and/or a decision was rendered." FAD, p.1. In her

Formal Complaint, complainant states: "Denied work in January 2009.

Went from 40 hours to 2 hours to 0 hours. Filed MSPB complaint, was

declared ineligible. Worked as a Lobby Director for 9 years, told by

manager . . . it was crossing crafts and I could no longer do work.

[The manager] then placed another Carrier in my [Lobby Director]

position." The Formal Complaint makes no mention of complainant being

forced to take disability retirement.

In her informal complaint, however, complainant told the EEO counselor

that her hours were reduced in August 2007; that she was forced to retire

on disability on June 19, 2008; in December 2008 she learned that another

Carrier had been placed in the Lobby Director position; and in March

2009, her MSPB claim, filed in January 2009, addressing forced disability

retirement, was denied/dismissed. A copy of complainant's MSPB appeal

shows that she is addressing the same claims as the present complaint.

In that appeal, complainant said that in August 2007 her hours had been

reduced from 40 hours to 0 hours; that management would no longer let

her work in the position she had been working for the past nine years;

that management explained that this was because employees could no longer

cross crafts; but that in December 2008 she found that a Carrier was

currently working in the position she had held for the last 9 years. On

appeal, complainant submits no further documents to clarify her claims

or rebut the agency's interpretation of her claims.

Following a review of the record, we AFFIRM the FAD. To the extent

complainant is claiming that her hours were reduced in January 2009, the

claim is dismissed under 29 C.F.R. � 1614.107(a)(2) for raising a matter

that is not like or related to the matter brought before the counselor.

To the extent complainant is claiming that her hours were reduced in

August 2007, and she was forced to take disability retirement, effective

June 19, 2008, the claims are dismissed for untimely EEO counselor

contact. The record shows that complainant first contacted a counselor

on March 4, 2009, which is beyond the forty-five day regulatory limit.

To the extent complainant is claiming that she waited until after MSPB

rendered a decision on her claim before filing her EEO complaint, we

note that under �1614.302(b):

If a person files a mixed case appeal with the MSPB . . . and the MSPB

dismisses the appeal for jurisdictional reasons, the agency shall promptly

notify the individual in writing of the right to contact an EEO counselor

within 45 days . . . and to file an EEO complaint, subject to � 1614.107.

The date on which the person filed [the] appeal with the MSPB shall be

deemed to be the date of initial contact with the counselor."

The record indicates that complainant filed her MSPB appeal on

December 30 or 18, 2008. Complainant mailed her appeal to the MSPB in

Washington DC where it was received on December 18, 2008. That office

notified complainant that she had submitted it to the wrong office and

forwarded the appeal to the correct office on or about December 30, 2008.

Complainant's MSPB appeal was dismissed for jurisdictional reasons on

January 23, 2009. Whichever date is used as the date of filing her MSPB

appeal, whether December 18 or 30, 2008, � 1614.302(b) states that

complainant may file "...subject to � 1614.107." Id. Because both

dates are beyond the 45 day limit, we find that complainant's appeal

was correctly dismissed.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

November 30, 2009

__________________

Date

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0120092714

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092714