01a45238_r
11-08-2004
Victoria Alvarado v. United States Postal Service 01A45238 November 8, 2004 . Victoria Alvarado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victoria Alvarado v. United States Postal Service
01A45238
November 8, 2004
.
Victoria Alvarado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45238
Agency No. 1F-941-0035-04
DECISION
Upon review, the Commission finds that the agency's decision dated
July 22, 2004, dismissing complainant's complaint due to untimely EEO
Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In her complaint, complainant, a former employee, alleged discrimination
on a continuing basis since March 2004, in that the Postal Service
denied her request to rehire her as a transitional or casual employee.
The agency, in its decision, stated that on October 8, 2003, complainant
was given a letter that they did not have a suitable job available for
her, and offered a Rehabilitation Program with the Department of Labor.
In that letter, the agency noted that complainant was separated from the
agency on September 6, 2003, as a non-career (transitional) employee.
The agency also stated in its decision that complainant's initial contact
with an EEO Counselor with regard to her complaint on March 24, 2004,
was beyond the 45-day time limit set by the regulations.
On appeal, complainant contends that in March 2004, a meeting was held
with the Rehabilitation Program and she was told that the agency had a
night shift position available for her in November 2003, but the position
was never offered to her. The Commission finds that complainant should
have reasonably suspected discrimination when she received the October 8,
2003 letter informing her of the unavailability of a position within
the agency. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988). Complainant did not contact an EEO
Counselor until March 24, 2004. Based on the foregoing, the Commission
finds that complainant has failed to present adequate justification to
warrant an extension of the applicable time limit for contacting an EEO
Counselor. Accordingly, the agency's decision dismissing the complaint
is AFFIRMED.<1>
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
November 8, 2004
__________________
Date
1Although the agency dismissed the complaint on the alternative
grounds for stating the same claim that has been decided by the
agency, we need not discuss this alternative reason for dismissal
in this decision.