01992248
02-28-2000
John J. Williams, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John J. Williams, Jr., )
Complainant, )
)
v. ) Appeal No. 01992248
) Agency No. 4-G-700-0233-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's January 8, 1999 decision dismissing
Complainant's complaint on the grounds of failure to state a claim and
untimely EEO counselor contact is proper pursuant to the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1) and (2). <1>
The record shows that Complainant sought EEO counseling, alleging that he
had been discriminated against on the bases of race, age, and reprisal
when:
(1) on or about February 5, 1998, he became aware that a certified letter
and a registered letter had not been delivered;
(2) on May 5, 1998, he became aware that someone may have impersonated
a federal judge at a conference he attended and a return receipt was
held for about two months;
(3) on June 1, 1995, he was forced to retire; and
(4) it was taking too long to process his EEO complaints. Subsequently
Complainant filed a formal complaint of discrimination concerning these
issues.
The record further reflects that Complainant's initial EEO Counselor
contact regarding claims (1), (2), and (4), occurred on May 5, 1998;
and that the initial EEO Counselor regarding claim (2) occurred on or
about August 12, 1996.
The agency issued a final decision dismissing all the allegations raised
in the complaint. Allegations (1) and (3) were dismissed on the grounds
of untimely EEO counselor contact. Allegations (2) and (4) were dismissed
on the basis of failure to state a claim.
Allegations (1) and (3) concern incidents that allegedly occurred on
February 5, 1998, and June 1, 1995, respectively. Complainant's EEO
counselor contacts were beyond the 45-day time limit provided by EEOC
Regulations. Accordingly, allegations (1) and (3) were properly dismissed
on the basis of untimely EEO counselor contact.
Concerning allegation (2), we agree with the agency's finding that
Complainant has failed to show that he was aggrieved because he has
failed to provide sufficient evidence that the terms, conditions or
privileges of his employment were harmed by the alleged incidents.
Allegation (4) was also properly dismissed by the agency on the grounds
of failure to state a claim. Accordingly, the final agency decision
is hereby AFFIRMED.
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:
February 28, 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
ASSISTANT 1 On 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.