01A44431_r
10-20-2004
Diane L. Jednesty, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diane L. Jednesty v. United States Postal Service
01A44431
October 20, 2004
.
Diane L. Jednesty,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44431
Agency No. 4A-105-0019-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 29, 2004, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
Complainant was publicly ridiculed on the workroom floor and lambasted
at a crisis intervention meeting on September 11, 2003.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency noted that complainant did not initiate EEO
Counselor contact until December 11, 2003, which is beyond the
applicable limitations period. Alternatively, the agency dismissed
complainant's complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(1), for stating the same claim pending before or
previously decided by the agency or Commission. The agency stated that
complainant previously filed EEO Case No. 4A-105-0013-02 on October 19,
2001, which was closed via a settlement agreement on January 4, 2002.
The agency stated that on January 4, 2003, complainant alleged a breach
of settlement agreement which was ultimately decided by the Commission
in EEOC Appeal No. 01A43655 (Aug. 31, 2004).
On appeal, complainant states that she was not notified until December 11,
2003, that Person A did not receive the sensitivity/diversity training
as specified in the January 4, 2002 settlement agreement and thus her
complaint could not be substantiated until that date. Complainant
acknowledges that she previously filed a breach of settlement claim
regarding term (4) of the January 4, 2002 settlement agreement.
Upon review, we find that the agency properly dismissed complainant's
claim that she was publicly ridiculed on September 11, 2003, for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). We note
that although the alleged incident occurred on September 11, 2003,
complainant did not initiate EEO Counselor contact until December 11,
2003, which is beyond the applicable limitations period. On appeal,
complainant has failed to present adequate justification for waiver of
the limitations period. The agency's decision dismissing the complaint
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
October 20, 2004
__________________
Date