01995259
07-06-2000
Raymond Fisher, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Raymond Fisher v. United States Postal Service
01995259
July 6, 2000
Raymond Fisher, )
Complainant, )
)
v. ) Appeal No. 01995259
) Agency No. 4C-150-0048-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On June 15, 1999, complainant filed a timely appeal with this Commission
from the May 17, 1999 final agency decision (FAD), dismissing his EEO
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant contacted the EEO office on January 26, 1999, regarding a
claim of discrimination based on age. Informal efforts to resolve his
concerns were unsuccessful. On April 20, 1999, complainant filed a
formal complaint.
The agency framed the complainant's claim as follows:
In September 1998, other probationary employees retained the same
beginning and ending times throughout their probationary period, cased
mail every day, usually carried a full route and when they carried
cuts off of routes, they were allowed to case mail for the following
day to complete eight hours.
On November 16, 1998 complainant was terminated for poor work
performance during his probationary period.
The agency dismissed the claim for untimely EEO Counselor contact.
Specifically, the agency indicated that evidence of record demonstrates
that complainant did not contact an EEO Counselor until approximately one
hundred-eighteen days after the matter raised in claim 1 and seventy-one
days after the matter raised in claim 2..
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact. The record discloses that
the alleged discriminatory events occurred in September 1998 and on
November 16, 1998, but that complainant did not initiate contact with
an EEO Counselor until January 26, 1999, beyond the forty-five (45) day
limitation period. On appeal, no persuasive argument or evidence have
been presented to warrant an extension of the time limit. Accordingly,
the agency's final decision dismissing complainant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.