01996821
04-12-2000
Carolyn V. Tibbs, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carolyn V. Tibbs, )
Complainant, )
)
v. ) Appeal No. 01996821
) Agency No. 1-R-1005-90
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DISMISSAL
Complainant filed a complaint dated October 20, 1989, alleging she
was discriminated against on the bases of race and disability and in
retaliation for prior protected activity when she was harassed.<1> The
agency issued a decision dated April 2, 1990, dismissing complainant's
October 20, 1989 complaint for failure to prosecute and for failure to
fall within the purview of EEOC Regulations. The April 2, 1990 decision
provided appeal rights to the Commission.
On July 9, 1999 complainant requested EEO counseling. The agency issued a
decision dated August 25, 1999 stating that after a telephone conversation
between complainant and an EEO Counselor/Investigator, complainant agreed
that the following issues were being raised in complainant's July 9,
1999 request for EEO counseling:
Complainant was subjected to coworker harassment during her former
employment at the Rochester, New York Post Office during the period of
1981 - 1989.
Complainant did not receive her appeal rights concerning Complaint
No. 1-R-1005-90.
In the August 25, 1999 decision the agency found that claim 1 was
the subject of Complaint No. 1-R-1005-90 and that claim 2 involves a
claim of improper processing of a prior complaint. In the August 25,
1999 decision, the agency referred to correspondence from complainant
dated July 13, 1999, in which she provided the circumstances concerning
her mental condition at the time of the issuance of the April 2,
1990 decision. The agency found that complainant's July 13, 1999
correspondence was an attempt to reopen the October 20, 1989 complaint.
The agency stated that it would not process the July 9, 1999 request for
EEO counseling as a separate actionable complaint. The agency found that
it mailed the April 2, 1990 decision to complainant's address of record
in two mailings, but that both were returned as �Moved Left No Address,
Unable to Forward.� The agency found that complainant did not provide
independent evidence showing that her mental condition at the time was
such that she did not have the capacity to appeal to the EEOC. The agency
concluded that complainant failed to act with due diligence by waiting
eight years after the issuance of the April 2, 1990 decision to contact
the EEO Complaints processing Office. The agency denied complainant's
request to reopen her October 20, 1989 complaint. The agency provided
appeal rights to the Commission in the August 25, 1999 decision.
After reviewing the entire record the Commission finds that complainant
is ultimately now attempting to file an appeal from the agency's April
2, 1990 decision dismissing complainant's October 20, 1989 complaint.
Complainant claims that she did not have the mental capacity to file
an appeal at the time of the prior decision. Complainant also states
that she was �homeless� and that she does not remember receiving the
agency's final decision. The Commission finds that appellant failed to
file the instant appeal within the current 30 day time limit for filing
an appeal set forth in 64 Fed. Reg. 37,644, 37659 (to be codified as
29 C.F.R. � 1614.402(a)) (the Commission notes that the time limit for
filing an appeal is now longer than it was in 1990). Complainant has
not shown that the agency failed to mail the April 2, 1990 decision
to the correct address. The earliest date that the record indicates
that complainant may have started making inquiries about the instant
matter is March 30, 1998. Thus, even using the date most favorable to
complainant, we find that complainant waited approximately eight years
after the issuance of the April 2, 1990 decision to pursue the matter.
The Commission finds that complainant failed to act with due diligence in
her pursuit of the instant matter. Therefore, we find that complainant's
appeal of the agency's decision dated April 2, 1990 is barred by the
doctrine of laches. See Brinkley v. Department of the Navy, EEOC Request
No. 05990476 (Mar. 15, 2000).
Accordingly, the instant appeal is DISMISSED pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37659 (to be codified as 29 C.F.R. �
1614.403(c)).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 12, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.