Elbert Hicks, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 10, 2000
01991525 (E.E.O.C. Jan. 10, 2000)

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.