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