0120092714
11-30-2009
Robin Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robin Scott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092714
Agency No. 4F900016909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 5, 2009, dismissing her 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of disability (Breast Cancer) and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. In August 2007 complainant's hours were reduced; and
2. Complainant was forced to take disability retirement effective June
19, 2008.
The agency dismissed the claims for untimely EEO Counselor and also found
that with regard to the reduction in hours, complainant was stating the
same claim as a claim she had previously filed before the Merit Systems
Protection Board (MSPB). We note initially that in her Formal Complaint,
complainant explicitly states that she was denied work in January 2009.
In a footnote, the agency acknowledges that complainant identified
the date of the incident as January 2009 but further states "however
this appears to be the approx. [sic] timeframe during which she filed
her MSPB appeal and/or a decision was rendered." FAD, p.1. In her
Formal Complaint, complainant states: "Denied work in January 2009.
Went from 40 hours to 2 hours to 0 hours. Filed MSPB complaint, was
declared ineligible. Worked as a Lobby Director for 9 years, told by
manager . . . it was crossing crafts and I could no longer do work.
[The manager] then placed another Carrier in my [Lobby Director]
position." The Formal Complaint makes no mention of complainant being
forced to take disability retirement.
In her informal complaint, however, complainant told the EEO counselor
that her hours were reduced in August 2007; that she was forced to retire
on disability on June 19, 2008; in December 2008 she learned that another
Carrier had been placed in the Lobby Director position; and in March
2009, her MSPB claim, filed in January 2009, addressing forced disability
retirement, was denied/dismissed. A copy of complainant's MSPB appeal
shows that she is addressing the same claims as the present complaint.
In that appeal, complainant said that in August 2007 her hours had been
reduced from 40 hours to 0 hours; that management would no longer let
her work in the position she had been working for the past nine years;
that management explained that this was because employees could no longer
cross crafts; but that in December 2008 she found that a Carrier was
currently working in the position she had held for the last 9 years. On
appeal, complainant submits no further documents to clarify her claims
or rebut the agency's interpretation of her claims.
Following a review of the record, we AFFIRM the FAD. To the extent
complainant is claiming that her hours were reduced in January 2009, the
claim is dismissed under 29 C.F.R. � 1614.107(a)(2) for raising a matter
that is not like or related to the matter brought before the counselor.
To the extent complainant is claiming that her hours were reduced in
August 2007, and she was forced to take disability retirement, effective
June 19, 2008, the claims are dismissed for untimely EEO counselor
contact. The record shows that complainant first contacted a counselor
on March 4, 2009, which is beyond the forty-five day regulatory limit.
To the extent complainant is claiming that she waited until after MSPB
rendered a decision on her claim before filing her EEO complaint, we
note that under �1614.302(b):
If a person files a mixed case appeal with the MSPB . . . and the MSPB
dismisses the appeal for jurisdictional reasons, the agency shall promptly
notify the individual in writing of the right to contact an EEO counselor
within 45 days . . . and to file an EEO complaint, subject to � 1614.107.
The date on which the person filed [the] appeal with the MSPB shall be
deemed to be the date of initial contact with the counselor."
The record indicates that complainant filed her MSPB appeal on
December 30 or 18, 2008. Complainant mailed her appeal to the MSPB in
Washington DC where it was received on December 18, 2008. That office
notified complainant that she had submitted it to the wrong office and
forwarded the appeal to the correct office on or about December 30, 2008.
Complainant's MSPB appeal was dismissed for jurisdictional reasons on
January 23, 2009. Whichever date is used as the date of filing her MSPB
appeal, whether December 18 or 30, 2008, � 1614.302(b) states that
complainant may file "...subject to � 1614.107." Id. Because both
dates are beyond the 45 day limit, we find that complainant's appeal
was correctly dismissed.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 30, 2009
__________________
Date
2
0120092714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092714