Mark S. Bisbal, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 7, 1999
01990343 (E.E.O.C. Oct. 7, 1999)

01990343

10-07-1999

Mark S. Bisbal, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mark S. Bisbal, )

Appellant, )

)

v. )

) Appeal No. 01990343

William J. Henderson, ) Agency No. 4F-920-0158-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 16, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated September 17, 1998, dismissing

his complaint for untimely counselor contact. The Commission accepts

the appellant's appeal in accordance with EEOC Order No. 960, as amended.

Appellant contacted the EEO office regarding allegations of discrimination

based on national origin (Hispanic - Puerto Rican), sex (male), and

mental disability (depression). Informal efforts to resolve appellant's

concerns were unsuccessful. Accordingly, on August 22, 1998 appellant

filed a formal complaint. The agency defined the allegation as follows:

appellant was discriminated against when he was issued a Notice of

Removal for Attendance Irregularities, effective on March 20, 1998.

The agency dismissed the complaint for untimely counselor contact,

pursuant to 29 C.F.R. �1614.107(b). Specifically, the FAD indicated that

based on the March 20, 1998 effective date of the alleged discrimination,

appellant's May 8, 1998 counselor contact was four days beyond the

forty-five (45) day time limitation.

On appeal, appellant argues that he initially contacted the EEO office on

February 18, 1998. Appellant contends that after receiving the Notice

of Termination he contacted the union, which agreed to file a grievance

and advised him to contact the EEOC. Relying on an unexecuted Request

for Counseling form dated February 18, 1998, appellant argues his contact

was timely.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel action,

within forty-five (45) days of the effective date of the action.

The Commission has held that a complainant commences the EEO complaint

process by contacting an EEO Counselor and "exhibiting an intent to begin

the complaint process." See Gates v. Department of the Air Force, EEOC

Request No. 05910798 (November 22, 1991) (quoting Moore v. Department of

the Treasury, EEOC Request No. 05900194 (May 24, 1990)). We find that

the blank Request for Counseling form, dated February 18, 1998, fails to

sufficiently exhibit an intent to begin the complaint process. It was

not until May 8, 1998 that appellant filled out a Request for Counseling

form. This is also the contact date included in the Counselor's Report.

Therefore, based on a review of the record, we find that the agency

properly dismissed appellant's complaint for untimely counselor contact.

Accordingly, the agency's decision dismissing appellant's complaint for

failure to timely contact a counselor is AFFIRMED.

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:

October 7, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations