01980831
11-17-1998
Charmyn J. Calderone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charmyn J. Calderone v. United States Postal Service
01980831
November 17, 1998
Charmyn J. Calderone, )
Appellant, )
)
v. ) Appeal No. 01980831
) Agency No. 1E-801-0142-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a letter,
dated October 3, 1997. The Commission accepts the appellant's appeal
in accordance with EEOC Order No. 960, as amended.
On September 3, 1997, the appellant requested EEO counseling. The
appellant alleged in her request that, based on her sex and in retaliation
for her prior EEO activity, the agency issued a letter of determination
wherein the agency refused to re-open case no. 1E-801-0069-97.
By letter dated October 3, 1997, the agency notified the appellant that it
could not process her request for counseling in agency no. 1E-801-0142-97,
as it concerns the agency's final decision in agency no. 1E-801-0069-97.
The letter also informed the appellant that it wrongly had assigned a
case number, agency no.1E-801-0142-97, to her request.
As a threshold matter, the Commission advises the agency that it is
required to provide EEO counseling to allegedly aggrieved individuals upon
request. See 29 C.F.R. �1614.102(c)(4) and �1614.105(b). In the instant
case, the counselor could have explained to the appellant its procedures
for complaining about the agency's failure to continuing the processing
her prior complaint. Perhaps this appeal could then have been avoided.
However, the Commission agrees with the agency that the appellant's
arguments regarding the processing of informal complaint no.
1E-801-0069-97 should be raised in her appeal from the agency's decision
in that case, rather than in a new complaint of discrimination. See
Bernard E. Tichenor v. Department of the Army, EEOC Request No. 05940488
(February 9, 1995) (the appellant properly raised his arguments
regarding the agency's fact-finding conference during his appeal from
the final agency decision on that complaint); and Robert J. Mount, Jr.
v. Department of the Air Force, EEOC Request No. 05930931 (June 2, 1994)
(issues such as the denial of requested witnesses, the withholding of
evidence, the failure to accept evidence, an alleged lack of
impartiality, and other purported inadequacies of an investigation of an
initial complaint should be raised and addressed in the context of the
initial complaint).
In addition, the Commission is addressing the propriety of the agency's
decision not to process informal complaint no. 1E-801-0069-97 in EEOC
Appeal No. 01976639 which is being decided concurrently with the instant
appeal.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's informal complaint no. 1E-801-0142-97.
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:
November 17, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations