0120064990
06-05-2007
Debbie L. Fentem, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debbie L. Fentem,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200649901
Agency No. 4F-852-0097-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 1, 2006, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Counselor contact. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of age (born in 1956) when:
1. on January 3, 2006, she was subjected to a fact-finding and she was
moved from Hopi Station to Kachina Station in Scottsdale;
2. on January 23, 2006, her mid-year pay for performance (PFP) scores
were lowered.
The record discloses that the last alleged discriminatory event occurred
on January 23, 2006, but complainant did not initiate contact with an
EEO Counselor until March 30, 2006, which is beyond the forty-five (45)
day limitation period. Complainant wrote in her complaint that she
delayed contacting an EEO counselor because she appealed her PFP score,
and was initially successful. The record does not show, however, that
this was finalized because not all the required signatures signaling
success were made. On appeal, complainant writes the discrimination
occurred on March 2, 2006. She wrote in her complaint that she learned
on this day that the initial favorable appeal determination was reversed
(meaning her PFP score would not be changed).
Utilization of an internal agency review or appeal mechanism does not toll
EEO time limits for seeking informal counseling. Hosford v. Department of
Veterans Affairs, EEOC Request No. 05890036 (June 9, 1989). See Martin
v. Department of Interior, EEOC Request No. 05910683 (October 3, 1991)
(applying Hosford where complainant appealed her job classification
to her agency and then to the Office of Personnel Management); Prince
v. Department of Defense, EEOC Appeal No. 01A15210 (July 25, 2002)
(applying Hosford where a complainant filed a classification appeal with
her agency). Hence, waiting for results of the appeal process did not
toll the time limit to seek EEO counseling. Accordingly, the agency's
final decision dismissing complainant's complaint 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
June 5, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064990