01a53378
09-09-2005
Delphine F. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Delphine F. Wilson v. United States Postal Service
01A53378
September 9, 2005
.
Delphine F. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53378
Agency No. 4J-606-0054-05
DECISION
Upon review, the Commission finds that the final agency decision (FAD)
properly dismissed the complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. The complainant
claimed that she was subjected to discrimination based on her race
(African-American) and sex (female) when from 1978 onward, she was denied
a career appointment.
She stated that she has worked intermittently as a casual, a non-career
position, since 1978. She complains that despite passing a postal exam,
she has not been appointed to a career position. According to the
counselor's report, the complainant passed the exam with a score in the
70s, and the last time she inquired about a career appointment and was
denied was on December 1, 2003. The record suggests that 70 is not a
desirable score.
On appeal, the complainant argues that it is discriminatory not to appoint
casual employees who have passed the postal exam with a score of 70.
She submits a copy of her April 7, 1995 rating of 74.20 for passing a
postal exam which was mailed to her. It indicates that she was placed
on the mail handler register on April 7, 1995, that the register expired
on April 6, 1997, and that her eligibility could be extended a third
year if she made a written request.
The complainant contacted an EEO counselor on January 6, 2005. The time
limit to contact an EEO counselor is 45 days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). In dismissing the complaint, the FAD reasoned that
the complainant contacted an EEO counselor more than 45 days after the
alleged discriminatory actions occurred.
The complainant has not pointed to any event that occurred within the
45 day time limit to seek EEO counseling. According to the counselor's
report, the complainant stated she was denied a career appointment
on December 1, 2003. She submits a hiring registry she was on that
expired in 1997. These events occurred years before she contacted an
EEO counselor.
Accordingly, the FAD's dismissal of the complainant's complaint for
failure to timely seek EEO counseling 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
September 9, 2005
__________________
Date
***FOR OFO INTERNAL CIRCULATION ONLY***
PROCEDURAL CASES
INITIAL
DATE REVIEWED
TO: CARLTON M. HADDEN, DIRECTOR,
OFFICE OF FEDERAL OPERATIONS
HILDA RODRIGUEZ, DIRECTOR,
APPELLATE REVIEW PROGRAMS
APPEAL NUMBER
AGENCY NUMBER
REQUEST NUMBER
HEARING NUMBER
01A53378
4J-606-0054-05
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL
TITLE
NAMES
INITIAL
DATE REVIEWED
ATTORNEY:
Todd Denicoff
9/7/05
SUPERVISOR:
Mary Jean Secoolish
DIVISION DIR:
Marie Fitzgerald
COMPLAINANT(S):
Delphine F. Wilson
AGENCY:
United States Postal Service
DECISION:
Affirmed
STATUTE(S)
Title VII
BASIS(ES):
RB and GF
ISSUE(S):
P3
TYPIST/DATE:
TD0/9/7/05
SPELL CHECK
Yes
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
OTHER CLOSURE CODES
X 3K - Procedural Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance Required
? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed
Revised 4/30/02
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Delphine F. Wilson
United States Postal Service
01A53378
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
Todd Denicoff 9/7/05
______________________ _______________
ATTORNEY DATE