0120090783
03-24-2009
Vallerie K. Spates Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vallerie K. Spates Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090783
Agency No. 4F826014007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In a complaint dated June 1, 2007, complainant alleged that she was
subjected to discrimination on the bases of race (African-American),
sex (female), color (Black), age (50), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when she
received notification that she owed the agency monies.
The procedural history of this matter is significant. Complainant
filed her complaint on June 1, 2007, and requested a hearing on June
27, 2007. Because her request for a hearing was premature, the agency
informed her of such. The agency completed its investigation in September
2007, and gave complainant her right to a hearing. Complainant did not
respond. On November 27, 2007, the agency issued a final agency decision
(FAD) both dismissing the matter for untimely EEO counselor contact
and finding no discrimination on the merits. Complainant did not appeal
the matter to the Commission. In July 2008, the Administrative Judge
inquired as to the status of the original hearing request, asking the
parties for information. Complainant did not respond, and the agency
explained it had sent the second notice of a right to a hearing and had
issued its FAD on the matter. Because complainant's original request
was premature, and because she did not file a request within 30 days of
receiving the report of investigation and second notice, the AJ dismissed
the matter. The agency, apparently not sure what to do after receiving
the AJ's dismissal, the issued another FAD, adopting the AJ's dismissal.
Complainant then filed the instant appeal.
The Commission finds that the AJ's dismissal was merely notice that
complainant failed to meet the time frames for requesting a hearing - she
was initially premature and then did not respond to the second notice.
Thus, it was not intended to resurrect the processing of the complaint
under the facts of this case. We note the AJ did not instruct the agency
to issue a decision on the matter. To that extent, the Commission
recognizes the November 27, 2007 final agency decision as the final
decision on this matter. Complainant cannot now appeal that decision
over a year later. Complainant's appeal is dismissed.
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
March 24, 2009
__________________
Date
2
0120090783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090783