Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 15, 2014

0120132462 (E.E.O.C. Jan. 15, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120132462

Agency No. 4B-006-0024-13

DECISION
Upon review, the Commission finds that the Agency’s final decision dated May 20, 2013,
dismissing Complainant’s complaint due to untimely EEO Counselor contact is proper pursuant
to 29 C.F.R. § 1614.107(a)(2).

In his complaint, dated April 23, 2013, Complainant alleged discrimination based on age (over
40) and disability when on December 20, 2012, his supervisor told him that he should retire
because he was old and his disability would keep him from working. It appears that
Complainant also alleged that the supervisor denied his request for a modified assignment and
lost his paperwork for the request. Complainant indicated that this incident occurred on
December 7, 2012.

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory
event, or the effective date of an alleged discriminatory personnel action. The record indicates
that Complainant contacted an EEO Counselor regarding the complaint on February 14, 2013,
which was beyond the 45-day time limit set by the regulations. There is no evidence that
Complainant did not know about the requisite time limit at the time of the alleged incidents.
On appeal, Complainant submits one timely brief and two untimely briefs. Even if we
considered the untimely briefs, we find that although Complainant may be indicating he
unsuccessfully attempted to contact the EEO Counselor, he failed to claim or show that he did
so in a timely manner. Thus, we find Complainant’s contact of an EEO Counselor to be
untimely.

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Accordingly, the Agency’s final decision is AFFIRMED.1

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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

(S0610)
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

1 Although the Agency also dismissed the complaint on the alternative grounds for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), we need not address such since the
dismissal is affirmed due to untimely EEO Counselor contact.
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
January 15, 2014