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