01991525
01-10-2000
Elbert Hicks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elbert Hicks, )
Complainant, )
v. ) Appeal No. 01991525
) Agency No. 1-K-211-0122-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 11, 1998, complainant filed a timely appeal of a final agency
decision, which was dated November 19, 1998, dismissing his complaint
due to untimely EEO Counselor contact, for failure to state a claim,
and/or for raising the same matter in an appeal to the Merit Systems
Protection Board (MSPB).<1>
In its final decision, the agency identified the claims of complainant's
September 23, 1998 complaint as whether complainant was discriminated
against when on various dates, his requests for vocational rehabilitation
were denied and the agency failed to address his requests to be restored
to duty in his local area. The agency noted that complainant, a former
Letter Carrier, resigned from employment on September 14, 1984. The
agency indicated that complainant submitted the following correspondence:
(1) an undated agency letter to OWCP from Injury Compensation, which was
in response to a September 14, 1989 OWCP letter, and which stated that
complainant had exhausted all of his administrative and judicial remedies
concerning restoration to duty; (2) an August 27, 1990 agency letter,
in response to complainant's request regarding noncompetitive career
hiring of severely disabled persons, which referred complainant to the
Department of Vocational Rehabilitation or to the Veterans Administration;
(3) complainant's October 4, 1996 request to the agency seeking vocational
rehabilitation, permission to enter a pain clinic and a review of his case
and an undated agency response, referring complainant to the Department
of Labor; (4) a May 20, 1998 letter to complainant from OWCP stating
that the last medical information was on January 21, 1993. Based on
the foregoing information, the agency determined that complainant's EEO
contact on July 15, 1998, or approximately 14 years after his resignation
from employment on September 14, 1984, and approximately 2 years after
the October 4, 1996 correspondence, was untimely.
The agency also determined that complainant previously raised the same
claims at issue in an appeal to MSPB, which rendered its decision on
or about May 14, 1988. The agency failed to submit any evidence in the
record concerning complainant's MSPB appeal.
On appeal, complainant does not raise any new contentions.
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 Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. � 1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
The record indicates that complainant resigned from employment with the
agency on September 14, 1984. The record also indicates that complainant
thereafter tried to be rehired back to the agency and/or tried to be in
the vocational rehabilitation program. After a review of correspondence
in the record, it appears that in or prior to 1990, the agency clearly
informed complainant that it could not assist him concerning his requests
to be restored to duty within the agency and/or vocational rehabilitation,
and asked him to contact the state Department of Vocational Rehabilitation
or other appropriate federal agencies. We find that complainant had or
should have had a reasonable suspicion of discrimination concerning the
matters at that relevant time period. Although complainant indicated that
he contacted an EEO Counselor after he recently received a letter dated
May 20, 1998, from OWCP, we find that this letter did not constitute a
new discriminatory action on the part of the agency concerning the denial
of hiring and/or vocational rehabilitation program. It is noted that
complainant also indicated that he filed an EEO complaint back in 1991,
concerning similar matters. On appeal, complainant fails to present
adequate justification to warrant an extension of the applicable time
limit for contacting an EEO Counselor. Accordingly, the agency's final
decision is hereby AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
January 10, 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 Equal Employment Assistant1On 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.
2In view of the affirmance of the dismissal of complainant's complaint
due to untimely EEO Counselor contact, we need not address the agency's
alternative grounds for dismissal.