Jessica J. Brown, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 15, 2004
01a42435_r (E.E.O.C. Jun. 15, 2004)

01a42435_r

06-15-2004

Jessica J. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jessica J. Brown v. United States Postal Service

01A42435

June 15, 2004

.

Jessica J. Brown,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A42435

Agency No. 4B-020-0008-04

DECISION

Complainant initiated contact with the agency's EEO Office on October

24, 2003. On January 20, 2004, complainant filed a formal EEO complaint

wherein she claimed that she was discriminated against on the basis

of her disability (unspecified) when effective December 5, 2000, she

was terminated during her probationary period as a Part-Time Flexible

City Carrier.

By decision dated January 28, 2004, the agency dismissed the complaint

on the grounds that complainant failed to initiate contact with an EEO

Counselor in a timely manner. The agency determined that complainant

initially sought EEO counseling on December 13, 2000, with regard to her

termination. According to the agency, on December 13, 2000, it mailed to

complainant the appropriate pre-complaint documents for her completion

and return for processing. The agency stated that these documents were

received by complainant on December 15, 2000. According to the agency,

complainant was advised to return the completed documents within ten

calendar days of her receipt, but that she failed to do so. The agency

stated that it sent via certified return receipt mail on January 8, 2001,

a letter informing complainant that if the aforementioned documents were

not received within fifteen calendar days, her request for EEO counseling

would be considered closed. The agency stated that this mailing was

returned unclaimed after delivery attempts were made on January 10,

2001, February 1, 2001, and February 6, 2001. The agency determined that

complainant suspected discrimination at the time of her termination, but

that she failed to exhibit intent to pursue her claim of discrimination.

The agency noted that complainant stated that she filed a discrimination

claim with the Massachusetts Commission Against Discrimination on April

23, 2001, and that she did not pursue the EEO process again until after

she did not receive any acknowledgment from the Massachusetts Commission

Against Discrimination.

On appeal, complainant acknowledges that she contacted the EEO Office

on December 13, 2000, concerning her termination. The agency notes that

complainant failed to pursue her claim through the EEO counseling process.

The agency argues that complainant had constructive knowledge of the

EEO process and its time limits, and she failed to exhibit an intent to

pursue the EEO process after she received the pre-complaint documents.

The record reveals that complainant was terminated from her position

effective December 5, 2000. Complainant initiated contact with an EEO

Counselor on December 13, 2000, and the EEO Office sent complainant

pre-complaint documents to complete and return. These documents were

received by complainant on December 15, 2000. Complainant, however,

failed to return these documents to the EEO Office. The agency

attempted to inform complainant via certified return receipt mail that

her request for EEO counseling would be closed if she did not contact

the agency within fifteen calendar days, but the mailing went unclaimed.

The Commission has held that individuals using the EEO process must act

with due diligence in the pursuit of their claims, or the doctrine of

laches may be applied. See O'Dell v. Department of Health and Human

Services, EEOC Request No. 05901130 (December 27, 1990). Under the

doctrine of laches, an individual's failure to diligently pursue his or

her legal remedies can result in the barring of the claims. The record

reveals that although complainant initially contacted the EEO Office in

December 2000, she did not again initiate contact with an EEO Counselor

until October 24, 2003, nearly three years after her first EEO contact.

We therefore find that the doctrine of laches is applicable in the

instant case. Complainant has not presented sufficient argument or

evidence to justify her delay in pursuing her claims. The Commission

finds that complainant abandoned her EEO claims by not pursuing them

for almost three years after she initially contacted an EEO Counselor.

Accordingly, the agency's decision dismissing complainant's complaint

was proper pursuant to 29 C.F.R. � 1614.107(a)(2) 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

June 15, 2004

__________________

Date