01a43723
09-15-2004
Donna M. Coats, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donna M. Coats v. United States Postal Service
01A43723
September 15, 2004
.
Donna M. Coats,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43723
Agency No. 4-E-980-0021-03
DISMISSAL OF APPEAL
On April 26, 2004, complainant filed an appeal with this Commission.
In response, in pertinent part, the agency argues that complainant has
no standing to file an appeal because she never filed a formal complaint
and never executed a settlement agreement. The agency requests that
the Commission dismiss the appeal.
According to the record, complainant contacted an EEO Counselor on
October 23, 2002, claiming age discrimination, concerning the following:
Complainant's March 1996 resignation from the agency;
The agency's failure to restore her seniority after her reinstatement
in February 1997; and
The agency's current practice of granting the schedule requests of
certain co-workers, similar to the schedule request the agency denied
to complainant in 1996, which resulted in her March 1996 resignation.
The record confirms that mediation was attempted in lieu of EEO
counseling, but failed, with a "No Agreement" statement being issued on
February 10, 2003. The agency next issued A Notice of Right to File
(NORF) to complainant's attorney, who received it on February 18, 2003.
The record additionally reflects that in correspondence to the agency
dated February 23, 2003, complainant admonishes the agency for failing to
issue her a copy of the NORF, indicating that she received a copy from
her attorney the previous day. Further, complainant's correspondence
references the issues she presented to the EEO Counselor, and expresses
confusion regarding the EEO processing given that another mediation
session was scheduled. However, complainant also specifically declares
her reluctance to file a formal EEO complaint, and indicates that the
matter can be resolved if the agency agrees to restore her seniority.<1>
In its February 26, 2003 response, the agency admits its oversight
regarding the NORF, and notifies complainant that no further mediation
would be scheduled.
The record contains correspondence from complainant to the agency, more
than one year later, dated in April 2004, wherein complainant avers
that during the February 2003 mediation, the attending agency official
promised to restore her seniority if she could obtain union approval for
this action, arguing that he failed to comply with their �agreement.�
In its April 19, 2004 response, the agency notified complainant that the
February 2003 mediation attempt resulted in a "No Agreement" statement,
and not a settlement agreement, such that the agency incurred no
obligation to restore her seniority.
On appeal, complainant disputes neither the lack of an enforceable
settlement agreement, nor that she failed to file a formal complaint.
Instead, she argues that the problem is still on-going, i.e., that her
seniority has not been restored, and that co-workers continue to be
granted schedule requests similar to that which the agency denied her
in 1996.
After review, we find that the record confirms that the parties did not
execute a settlement agreement as a result of the February 2003 mediation.
Furthermore, we find that complainant's February 23, 2003 correspondence
cannot be construed as a formal complaint, given that she clearly declares
her disinclination to file a formal complaint. Accordingly, we find that
the Commission lacks jurisdiction over this matter. See 29 C.F.R. ��
1614.401 (a) and (e).
For the reasons set forth above, the appeal is DISMISSED.
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
September 15, 2004
__________________
Date
1Complainant's correspondence contains the
following statement: "Am I going to send this EEO to headquarters?
Only if you force me to. It is not my intention to make [named management
official] employment with the Postal Service any more difficult."