Theresa E. Brown, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 28, 1999
01972538 (E.E.O.C. Jan. 28, 1999)

01972538

01-28-1999

Theresa E. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Theresa E. Brown v. United States Postal Service

01972538

January 28, 1999

Theresa E. Brown, )

Appellant, )

)

v. ) Appeal No. 01972538

) Agency No. 4D-230-1064-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated April 29, 1996, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts the

appellant's appeal in accordance with EEOC Order No. 960, as amended.

The final agency decision defined eight allegations raised by the

appellant's January 26, 1996 complaint. The agency dismissed allegations

1 through 5 for untimely EEO counselor contact. The agency dismissed

allegations 6 and 7 for failure to state a claim. The agency accepted

allegation 8 for investigation.

On appeal, the appellant contends that she disagrees with the dismissal

of allegations 1 through 7 because she alleged discrimination based on

retaliation for her prior EEO complaint. The appellant represents that

the agency assured her that no reprisal action would be taken against

her for filing the prior complaint and that she has made every attempt

to comply with agency procedures for expressing breach of agreement.

As a threshold matter, there is no evidence in the record that the

appellant has notified the agency of alleged noncompliance with

the terms of an EEO settlement agreement. There is no mention of a

settlement agreement in the appellant's request for counseling, the EEO

Counselor's Report, or the formal complaint. Moreover, EEOC Regulation

29 C.F.R. �1614.504(c) provides that allegations that subsequent acts of

discrimination violate a settlement agreement should be processed as new

complaints of discrimination. The appellant's retaliation allegations

appear to constitute new acts of alleged discrimination.

After a review of the record, including the appeal submissions of the

parties, the Commission finds that the agency properly dismissed the

appellant's complaint.

The Commission finds that the appellant first sought counseling

on November 17, 1995, more than 45 calendar days after the alleged

discriminatory actions on June 9, June 15, August 9, August 31, and

September 27, 1995 described in allegations 1 through 5.

The Commission finds that allegation 6<1> and allegation 7<2> do not

state independent claims of discrimination. Instead, they appear to be

part of the claim of discrimination raised in allegation 8.<3>

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of the appellant's January 26, 1996 complaint.

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. �1614.604(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 28, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations

1Allegation 6: On October 25, 1995, the appellant was informed she was

scheduled for a fitness for duty examination.

2Allegation 7: On October 26, 1995, the appellant's supervisor implied

she was not capable of performing the duties of a Motor Vehicle Operator.

3Allegation 8: On November 8, 1995, the appellant was issued a letter

of warning for failure to report for a fitness for duty examination.