01A02712_r
09-18-2002
Carmen Seda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmen Seda v. United States Postal Service
01A02712
September 18, 2002
.
Carmen Seda,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02712
Agency No. 4A-006-0071-97
Hearing No. 160-98-8078-X
DISMISSAL OF APPEAL
The record indicates that on August 19, 1997, complainant filed an EEO
complaint (Agency No. 4-A-006-0071-97) in which she alleged that the
agency subjected her to discrimination on the bases of sex, disability,
and in reprisal for prior EEO activity when on July 12, 1997, the agency
failed to promote her to the position of Postmaster, EAS-20, in Sabana
Grande, Puerto Rico.
A hearing on Agency No. 4-A-006-0071-97 was held, but no decision
was issued by the Administrative Judge (AJ). After the instant case
went to a hearing in April 1998, complainant subsequently filed two
informal complaints (Agency Nos. 4A-006-0024-98 and 4A-006-0031-98)
involving the non-selection for a Postmaster position in Hormigeuros,
Puerto Rico. The agency consolidated these two informal complaints and
assigned them Agency No. 4A-006-0024-98. On March 29, 1999, complainant
sent an unsigned letter to the agency requesting a hearing for Agency
No. 4A-006-0024-98 and 4A-006-0071-97, stating that she did not want
the time limit for requesting a hearing to expire. On April 29, 1999,
a mediation session was held wherein complainant signed a document
identified as �Withdrawal of Formal EEO Complaint.� The Case Numbers
that were listed in the document were identified as �4A-006-0071-97"
and �4A-006-0024-98.�
On November 22, 1999, complainant's attorney received a copy of an agency
motion for dismissal dated November 16, 1999, regarding complaint Agency
No. 4A-006-0071-97, stating that complainant voluntarily withdrew her
complaint on April 29, 1999.
On November 24, 1999, complainant filed a motion opposing the dismissal
of Agency No. 4A-006-0071-97 on the grounds that complainant agreed to
only withdraw Agency No. 4A-006-0024-98 as part of the mediation process.
Complainant contends that the agency misled her to sign a document
which did not reflect the same matters agreed upon during mediation.
Further, complainant contends that Management Directive 110 (MD-110),
Section D allows for the mediation prior to a hearing, but does not
allow for mediation after a hearing has been held, which is the case
with Agency No. 4A-006-0071-97.
On November 19, 1999, the AJ notified the agency's EEO Compliance and
Appeals Coordinator
that Agency No. 4A-006-0071-97 had been withdrawn, terminating processing
of that case. On December 6, 1999, complainant again filed a motion
with the AJ to review his decision to dismiss Agency No. 4A-006-0071-97.
On February 2, 2000, the AJ issued an order denying complainant's request
on the basis that he no longer has jurisdiction over the matter because
complainant withdrew the complaint.
Upon review of the matter, the Commission dismisses the instant appeal.
On appeal, complainant seeks to revoke the withdrawal of her complaint
because she claims she was misled about its implications. However,
we note that the record contains the withdrawal notice dated April
29, 1999, in which complainant states that she �hereby voluntarily
withdraw[s]� Agency Nos. No. 4A-006-0024-98 and No. 4A-006-0071-97.
Moreover, we note that contrary to complainant's assertion that efforts
at alternative dispute resolution are only permitted before a hearing,
EEO Regulations provide that �each agency shall make reasonable efforts
to voluntarily settle complaints of discrimination as early as possible
in, and throughout, the administrative processing of complaints.� EEO
Regulation 29 C.F.R. � 1614.603. (emphasis added). Consequently,
we find that complainant validly withdrew Agency No. 4A-006-0071-97,
depriving the Commission of jurisdiction over the matter. The record
contains no evidence reflecting that the agency misled complainant into
withdrawing Complaint No. 4A-006-0071-97. Accordingly, complainant's
appeal is hereby DISMISSED.
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 18, 2002
__________________
Date