Richard K. Burkev.United States Postal Service 01995595 July 28, 2000 .Richard K. Burke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01995595 (E.E.O.C. Jul. 28, 2000)

01995595

07-28-2000

Richard K. Burke v. United States Postal Service 01995595 July 28, 2000 .Richard K. Burke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Richard K. Burke v. United States Postal Service

01995595

July 28, 2000

.Richard K. Burke,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01995595

Agency No. 4-B-140-0066-99

DECISION

Upon review, the Commission finds that the 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 Counselor contact.<1>

The record shows that on February 17, 1999, Complainant sought EEO

counseling, claiming that he had been discriminated against on the

basis of physical disability when he lost his 1977 seniority when he

was reassigned to the Clerk Craft from the Carrier Craft effective

April 6, 1982, while Special Delivery Messengers who changed to Clerk

Craft maintained their seniority when they bid into the Clerk Craft in

February 1999.

The agency issued a final decision dismissing the complaint on the grounds

of untimely EEO Counselor after finding that although Complainant had lost

his seniority in 1982, he did not seek EEO counseling until February 1999,

which is beyond the forty-five (45) day limitation period.

On appeal, Complainant contends that he �went to EEO for a complaint in

this matter back in 1982 [but that he] was told that there was nothing

they [could] do to help [him]�. Complainant further contends that he

was recently informed that all records dating back to 1982 have been

destroyed by the agency. The agency acknowledges that Complainant sought

EEO counseling in 1984, and claims that while said formal complaint was

settled the records have been �purged�. A review of the record persuades

the Commission that the complaint was properly dismissed on the grounds

of untimely EEO Counselor contact. The record shows that by letter dated

February 13, 1984, Complainant was informed that he would �be considered

a Distribution Clerk (unassigned) with a new seniority date of April 6,

1982". Complainant claims for the first time on appeal that he sought

EEO counseling in 1982. We find that Complainant has failed to provide

arguments or evidence to warrant an extension of the time limit for

initiating EEO contact because while he claims he sought EEO counseling

concerning this matter in 1982, the record shows that it was not until

February 13, 1984, that he was informed about his new seniority date.

Moreover, the Commission has consistently held that complainants must

act with due diligence in the pursuit of their claims or the doctrine of

laches may be applied. O'Dell v. Department of Health and Human Services,

EEOC Request No. 05901130 (December 27, 1990). Since February 1984,

Complainant was aware that his seniority date had been adjusted to April

6, 1982. However, he did not seek EEO counseling until 15 years later,

when in February 1999, other employees were allegedly allowed to keep

their seniority when they changed crafts. Based on the foregoing,

we find that Complainant failed to act with due diligence concerning

his seniority. 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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.