Linda F. Wafer, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionNov 20, 1998
01985489 (E.E.O.C. Nov. 20, 1998)

01985489

11-20-1998

Linda F. Wafer, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.


Linda F. Wafer v. United States Postal Service

01985489

November 20, 1998

Linda F. Wafer, )

Appellant, )

)

v. ) Appeal No. 01985489

) Agency No. 4-G-700-1309-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Areas), )

Agency. )

______________________________)

DECISION

On July 31, 1996, Linda F. Wafer (appellant), timely appealed the agency's

final decision dismissing appellant's EEO complaint on the grounds of

untimeliness. The Commission hereby accepts the appeal in accordance

with the provisions of EEOC Order No. 960.001.

The record reveals that appellant contacted an EEO Counselor on August 2,

1995 and alleged discrimination on the basis of race when she was

informed that a coworker's bid job was altered to include duties of DSIS,

and truck card, and she (appellant) was not afforded the same preferred

assignments. On July 24, 1996, the agency issued a final agency decision

(FAD), which dismissed appellant's complaint for untimely EEO contact.

According to the agency, appellant was aware of the alleged discrimination

at issue in January 1995 as she filed a grievance on the same issue on

January 13, 1995.

The record does not contain a copy of the grievance filed by appellant on

January 13, 1995. However, appellant states on the EEO informal complaint

form that, in January 1995, she filed a grievance on the same issue as

that raised in the informal complaint. On appeal, appellant contends

that the answer she received via the grievance process was so vague

that it had no real meaning. Appellant also indicates that she filed

the EEO complaint because of the length of time it took management and

the Union to reach a solution and because of the unsatisfactory service

she received under the grievance process.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that an aggrieved

person bring an alleged discriminatory act to the attention of the EEO

Counselor within 45 calendar days of the date of the matter alleged

to be discriminatory or, in the case of a personnel action, within 45

calendar days of the effective date of that action. We find that the

agency properly dismissed appellant's complaint. While the record does

not contain a copy of the grievance appellant filed in January 1995,

we find that appellant's own admissions in the informal complaint form

and on appeal, and the record as a whole, provide sufficient evidence

on which to base our decision. Accordingly, the decision of the agency

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Nov 20, 1998

_______________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations