01972618
01-27-1999
Allen D. Gessman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Allen D. Gessman v. United States Postal Service
01972618
January 27, 1999
Allen D. Gessman, )
Appellant, )
)
v. ) Appeal No. 01972618
) Agency No. 1C-443-1048-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision
dated January 3, 1997 dismissing a portion of appellant's complaint.
The Commission finds that the agency's decision dismissing allegations
1 - 3, 7, 8, and 10 - 19 for failure to timely contact an EEO Counselor
is proper pursuant to 29 C.F.R. �1614.107(b). The Commission finds that
allegations 1 - 3, 7, 8, and 10 - 19 are not timely under the continuing
violation theory because we find that appellant should have reasonably
suspected discrimination at the time of the incidents which were more
than 45 days prior to his initial contact of an EEO Counselor on May
17, 1996.
The agency defined allegation 21 as follows: "June 2, 1994, December
27, 1995 and May 17, 1996, EEO complaints with all written statements
and issues raised therein with all attachments." The Commission finds
that the portion of allegation 21 referring to the incidents of, and/or
complaints/requests for counseling filed on, June 2, 1994 and December
27, 1995 was properly dismissed for untimely EEO Counselor contact
pursuant to �1614.107(b). Furthermore, we find that allegation 21 is
not timely under the continuing violation theory because we find that
appellant should have reasonably suspected discrimination at the time of
the incidents which were more than 45 days prior to his initial contact
of an EEO Counselor on May 17, 1996. To the extent that appellant is
attempting to raise incidents in allegation 21 which were also raised
elsewhere in other allegations in the instant complaint, we find that this
portion of allegation 21 is properly dismissed for stating the same claim
pursuant to �1614.107(a). To the extent that appellant is attempting to
raise other undefined issues in allegation 21, we find that the agency
properly dismissed this portion of allegation 21 for failing to state
a claim pursuant to �1614.107(a). Appellant has not shown how he was
aggrieved by these vaguely referenced issues in allegation 21.
The Commission finds that the agency properly dismissed allegations 4
(MDO told two 204Bs not to grant anyone incidental leave), 5 (false
statements on 3971), 20, and 22 for failure to state a claim pursuant
to �1614.107(a). Appellant has failed to show how he was aggrieved in
allegations 4, 5, 20, and 22. In allegation 4, no incidental leave
was actually denied. The denial of incidental leave on this date in
allegation 4 was accepted by the agency in another allegation. The agency
defined allegation 20 as follows: "Ongoing are many other examples of
attempts to dissuade complaints of management's failure to provide safe
and healthful working conditions." The agency defined allegation 22
as follows (brackets original): "Ongoing are other incidents as spoken
of during all informal interviews as pertain [sic]." The Commission
finds that appellant failed to show how he was specifically aggrieved
in allegations 20 and 22.
The agency's decision dismissing allegations 1 - 5, 7, 8, 10 - 22 is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 27, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations