01983128
03-01-1999
George A. Friday, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
George A. Friday, )
Appellant, )
)
)
v. ) Appeal No. 01983128
) Agency No. 4-H-370-0138-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII, 42 U.S.C. 2000e,the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., and
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The final agency decision was dated February 11, 1998 and received by the
appellant on February 12, 1998. The appeal was postmarked March 13, 1998.
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 improperly dismissed the
complaint for failure to state a claim and for untimely contact with an
EEO counselor.
BACKGROUND
The record indicates that on April 4, 1997, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to
resolve his concerns were unsuccessful. On June 8, 1997, appellant
filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the basis of his
race(white), sex (male) age (55) physical disability and reprisal when:
he was suspended for 14 days beginning on May 17, 1996;
he was required to work overtime;
On February 11, 1998, the agency issued a final decision dismissing
appellant's complaint for untimely EEO counselor contact and for failure
to state a claim. Specifically, the agency found that the complainant's
contact with the EEO counselor regarding his claims occurred on April 7,
1997 long after the date of his suspension on May 17, 1996 and therefore,
he was far past the 45 day limit under 29 C.F.R. �1614.105 a(1). The
agency also found that the appellant was untimely in seeking EEO
counselor contact and he failed to state a claim when he alleged that
forcing him to work overtime was discriminatory.
ANALYSIS AND FINDINGS
EEOC Regulation �1614.105a(1) requires a complainant to initiate contact
with an EEO counselor within 45 days of the date of the matter alleged to
be discriminatory or in the case of a personnel action, within 45 days
of the effective date of the personnel action. In this case, the record
shows that the appellant did not contact an EEO counselor regarding
his claims until April 4, 1997, almost 11 months after he had been
suspended on May 17, 1996. Even if we were to assume that his allegation
of mandatory overtime assignments were continuous, the appellant alleged
that the date of the latest occurrence of any discriminatory conduct was
January 30, 1997 over sixty days before his first contact with an EEO
counselor. Therefore, we agree with the agency that his claims should
be dismissed for untimely counselor contact.<1>
There is some indication from the record that the appellant may be
appealing an unfavorable arbitration decision but such a decision is
not appealable under 29 C.F.R.� 1614.401(c).
CONCLUSION
Accordingly, we AFFIRM the agency's dismissal of the complaint due to
the appellant's untimely contact with an EEO counselor.
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. �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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
March 1, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Although we disagree with agency that the appellant fails to state
a claim of discrimination regarding being forced to work overtime,
we need not address this since we affirm the dismissal on other grounds.