0120091139
10-08-2009
Toni A. Haynes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Toni A. Haynes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091139
Agency No. 1G-753-0005-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 12, 2008, 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 contact and 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of sex (female), disability (physical
assault, PTSD, anxiety, major depression), and in reprisal for prior
protected EEO activity when the Department of Labor, Office of Workers'
Compensation Programs (OWCP) denied her claim for workers' compensation
benefits in September 2007. Complainant contacted an EEO counselor on
October 17, 2008, more than one year beyond the 45-day period within
which a complainant must raise his/her claim with an EEO counselor.
See 29 C.F.R. � 1614.105(a091). Complainant has offered no explanation
for the delay so as to warrant extending the time frame for counselor
contact. See 29 C.F.R. � 1614.104(a)(2). In addition, complainant's
claim constitutes a collateral attack on the decision-making process
of another agency and, therefore, fails to state a claim under the
EEO regulations. See 29 C.F.R. �1614.107(a)(1).
The agency dismissed the instant complaint on December 12, 2008.
Upon review, we find that the agency's action was correct. Accordingly,
the agency's action is affirmed.1
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
October 8, 2009
Date
1 In a filing with the Commission on June 30, 2009, complainant raised
a new issue in regard to a letter from the agency about her absence
since April 2008. The Commission has held that it is not appropriate
for complainant to raise new claims for the first time on appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004). Should she wish to pursue this claim, complainant is
advised to contact an EEO counselor to begin the administrative process.
For timeliness purposes, the date of complainant's initial contact shall
be deemed to be the date on which complainant brought this matter to
the Commission's attention, i.e., June 30, 2009.
??
??
??
??
2
0120091139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091139