Anthony Owen, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
01981456 (E.E.O.C. Jan. 8, 1999)

01981456

01-08-1999

Anthony Owen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Anthony Owen v. United States Postal Service

01981456

January 8, 1999

Anthony Owen, )

Appellant, )

)

v. ) Appeal No. 01981456

) Agency No. 4-G-770-0639-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The final agency decision was received by

appellant on December 5, 1997. The appeal was postmarked December 8,

1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to timely file a formal complaint after receiving

notice of his right to do so.

BACKGROUND

The record indicates that appellant contacted an EEO counselor on July 14,

1997, regarding allegations of discrimination. Specifically, appellant

alleged that he was discriminated against when he was issued a Letter

of Warning (LOW) for unsatisfactory work performance. Informal efforts

to resolve appellant's concerns were unsuccessful. Accordingly, on

September 8, 1997, appellant filed a formal complaint alleging that he

was the victim of unlawful employment discrimination on the bases of sex

(male) and race (black). Appellant's formal complaint alleged that in

July 1997, he was denied union representation and was yelled at by his

manager. Appellant's formal complaint did not include reference to

the allegation concerning the LOW for which he had originally sought

EEO counseling.

Thereafter, on December 1, 1997, the agency issued a final decision (FAD)

addressing the allegations concerning his denial of union representation

and the conduct of his manager pursuant to 29 C.F.R. �1614.107(b).

29 C.F.R. �1614.107(b) states that the agency shall dismiss a complaint

or a portion of a complaint that raises a matter that has not been

brought to the attention of a Counselor and is not like or related to a

matter that has been brought to the attention of a Counselor. The FAD

advised appellant to seek EEO counseling on the new issues within fifteen

(15) days of his receipt of the agency's final decision. Upon review

of appellant's complaint, we determine that appellant's complaint

raised issues for which he had not received counseling. As written,

appellant's formal complaint provides no indication as to whether the

allegations are related to appellant's LOW allegation. In that regard,

we determine that the agency's decision to require appellant to contact

a counselor regarding appellant's union representation allegation and

that concerning the conduct of his manager was proper.

The FAD further dismissed appellant's LOW allegation pursuant to 29

C.F.R. �1614.105(d) which provides that the agency shall inform the

complainant of his right to file a formal complaint and that complainant

must file said complaint within fifteen (15) days of his receipt of the

agency's Notice of Right to File.

The record indicates that appellant received the agency's Notice of Right

to File on August 19, 1997. In accordance with 29 C.F.R. �1614.105(d)

appellant's formal complaint would properly be filed within fifteen (15)

days of August 19, 1997 or by September 3, 1997. The record further

indicates that appellant did not file his formal complaint on September 3,

1997 but instead, filed said complaint on September 8, 1997.

Based on our review of the record, we hold the appellant failed to timely

file a formal discrimination complaint. The Commission has held that

where there is an issue of timeliness, the agency always bears the burden

of obtaining sufficient information to support a reasoned determination

as to timeliness. See Williams v. Department of Defense, EEOC Request

No. 05920506 (August 25, 1992). The agency has provided the Commission

with sufficient information to supports its determination that appellant's

formal complaint was untimely filed. Appellant has offered no persuasive

evidence to reverse the agency's determination as to timeliness.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

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. �1614.604(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 8, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations