0120065318
02-06-2007
Diane Willemstyn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diane Willemstyn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200653181
Agency No. 4H-335-0134-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 17, 2006, dismissing her formal EEO
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.
In the instant complaint, filed on August 10, 2006, complainant claimed
that she was subjected to discrimination in reprisal for prior EEO
activity when:
on June 20, 2006, her supervisor tampered with evidence for her EEOC
Hearing, for Agency No. 4H-335-0128-05.
The record reflects that complainant claimed that her supervisor removed
an original PS-Form 1564-A, Delivery Instruction, from the route book for
Route 11 which she needed for her EEOC hearing in the above referenced
case.
In its September 17, 2006 final decision, the agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. The agency concluded that complainant was not aggrieved since
she suffered no harm as a result of the alleged discriminatory action.
The agency also alternatively dismissed the complaint pursuant to
29 C.F.R. � 1614.107(a)(8), on the grounds that this claim allege
dissatisfaction with the processing of a previously filed EEO complaint,
Agency No. 4H-335-0128-05. Specifically, the agency concluded that it
was inappropriate for complainant to address the matters involving her
previous complaint because an EEOC Administrative Judge (AJ) entered a
decision of no discrimination on August 18, 2006. The agency further
concluded that complainant should have raised this claim before the AJ
during the course of her hearing.
On appeal, complainant contends that she was subjected to "a continued
pattern of retaliation and harassment" by her Supervisor. Complainant
further states "the knowledge that she is willing to remove official
documents has negatively affected my work performance." Complainant
states that the Supervisor also did not follow the Overtime Desired List;
and denied her authorized break areas.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall
dismiss a complaint that alleges dissatisfaction with the processing of
a previously filed complaint.
Here, complainant claims dissatisfaction with the processing of a
previously filed complaint. Pursuant to 29 C.F.R. � 1614.107(a)(8),
the agency properly dismissed the complaint.
Because we affirm the agency's dismissal for the reason stated herein,
we find it unnecessary to address the agency's alternative disposition
of this complaint.
Finally, we note that on appeal, complainant raises new claims of
harassment relating to additional actions purportedly taken by the
Supervisor. We note that these claims were not previously raised
during the EEO pre-complaint processing, or in the formal complaint.
It is inappropriate for complainant to raise these new claims for the
first time as part of the instant appeal.
The agency's final decision dismissing complainant's complaint for the
reason stated herein 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
February 6, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120065318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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