01A04784_r
10-16-2001
Colleen A. McGarry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Colleen A. McGarry v. United States Postal Service
01A04784
October 16, 2001
.
Colleen A. McGarry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04784
Agency
No. 4F-940-0075-00
DECISION
Complainant initiated contact with an EEO Counselor on January 25, 2000.
On March 17, 2000, complainant filed a formal EEO complaint wherein she
claimed that she was discriminated against on the bases of her disability
(perceived)<1> and in reprisal for her previous EEO activity under Title
VII and the Rehabilitation Act when:
1. On December 18, 1999, complainant received a copy of her OWCP claim
file and discovered communications from supervisors and managers that
were untrue.
2. Complainant's supervisor and managers conspired to convince the
Department of Labor to deny her OWCP claim.
3. In February 1999, complainant was shown a Form CA-17 dated February
10, 1998, that was invalid but had disqualified her from a bid.
4. In December 1997, a supervisor charged over a week of absence to
complainant's annual leave balance instead of the leave without pay that
she had requested.
The agency dismissed claims 1-2 of the complaint, pursuant to 29
C.F.R. �1614.107(a)(1), on the grounds of failure to state a claim.
The agency determined that these claims concern matters adjudicated by
the Department of Labor. We find that the agency correctly determined
that these claims constitute a collateral attack on the OWCP process,
and therefore claims 1-2 fail to state a claim under EEOC Regulations.
The agency dismissed claim (3), pursuant to 29 C.F.R. �1614.107(a)(1),
on the grounds that it states the same claim that is pending before or
has been decided by the agency or the Commission. The agency determined
that in Agency No. 4F-940-0171-99, it addressed the matter of complainant
being denied a bid position on route 223 in February 1999. The agency
noted that complainant filed an appeal of its decision in that case with
the Commission. We find that the record establishes that the denial of
complainant's bid for a position on route 223 was previously raised in
Agency No. 4F-940-0171-99. Therefore, the agency correctly determined
that claim (3) of the instant complaint states the same claim as that
decided by the agency.
The agency dismissed claim (4), pursuant to 29 C.F.R. �1614.107(a)(2),
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant's
EEO contact on January 25, 2000, was more than 45 days after complainant
was charged with a week of annual leave rather than leave without pay.
Complainant states that she learned in January 1998 that she was
charged with annual leave. According to complainant, the Union Steward
told her in January 1998 that management acted within its discretion.
Complainant states that she was unaware until January 2000 that management
did not have the right to approve or disapprove the type of leave utilized
when an employee is absent but not ill. We find that complainant did
not exercise due diligence with regard to the alleged incident and that
complainant has not submitted sufficient justification for an extension
of the 45-day limitation period for contacting an EEO Counselor.
Accordingly, the agency's dismissal of claim (4) of the complaint on
the grounds of untimely EEO contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant states that she has osteoarthritis and that this condition
necessitates that she wear braces on both wrists.