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.