01976713
01-20-1999
Theresa D. Comer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Theresa D. Comer v. United States Postal Service
01976713
January 20, 1999
Theresa D. Comer, )
Appellant, )
)
v. ) Appeal No. 01976713
) Agency No. 4D-230-0099-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
The Commission finds that the agency's decision dated July 31, 1997
dismissing appellant's complaint (harassment) on the grounds that
appellant failed to timely contact an EEO Counselor is proper pursuant to
29 C.F.R. �1614.107(b). None of the alleged incidents in the complaint
occurred within 45 days of appellant's contact of an EEO Counselor on
January 17, 1997.
On appeal argues that she filed an appeal with the Merit Systems
Protection Board (MSPB), but that she thought a "mixed EEO and MSPB
could not be heard together." Appellant argues that the MSPB issued a
decision in January 1997. Appellant argues that she had dropped her
initial complaint filed on December 29, 1995 to await the outcome of
the MSPB appeal.
EEOC Regulation 29 C.F.R. �1614.302(a)(2) states:
Mixed case appeals. A mixed case appeal is an appeal filed with the MSPB
that alleges that an appealable agency action was effected, in whole or
in part, because of discrimination on the basis of race, color, religion,
sex, national origin, handicap or age.
If appellant had filed a mixed case appeal, then the MSPB would have
considered the allegations of discrimination raised in such an appeal
and appellant could file a petition with the Commission from a final
decision from the MSPB on a mixed case appeal. 29 C.F.R. �1614.303.
Appellant has not claimed that the MSPB found that it did not have
jurisdiction over the appealed matter. The Commission finds that
appellant has not provided in this case any reason under our regulations
for extending the deadline for contacting an EEO Counselor because of
any matter filed by appellant with the MSPB. Furthermore, appellant has
failed to provide evidence showing she was misled by the agency about
the proper time frame for contacting an EEO Counselor.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 20, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations