01A24072_r
10-31-2002
Richard W. Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard W. Green v. United States Postal Service
01A24072
October 31, 2002
.
Richard W. Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24072
Agency No. 4-C-442-0060-02
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for untimely EEO Counselor contact, pursuant to
29 C.F.R. � 1614.107(a)(2). In his complaint, complainant claimed
that he was discriminated against on the basis of disability (military
compensation) when, on March 9, 1999, June 15, 2000, May 23, 2000, and
October 11, 2000, he was not hired as a career employee with the Akron
Customer Service District.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that complainant should have reasonably suspected
that he had been discriminated against by September 27, 2001, the date
on which he wrote a letter to the Akron Human Resources Manager inquiring
into the reasons why he was not selected for the many positions for which
he was interviewed. Complainant did not initiate contact with an EEO
Counselor until December 21, 2001, which is beyond the forty-five (45)
day limitation period.
On appeal, complainant claims that he was not properly informed about
the EEO process. Specifically, he asserts that the agency did not reply
to several telephone inquiries made by complainant regarding his claim
of non-selection; therefore, he did not know the time frame in which �to
file an appropriate EEO complaint.� The agency responds that complainant
has prior EEO activity, therefore, he is considered knowledgeable about
the federal guidelines for timely EEO Counselor contact. Moreover,
complainant received a booklet, by certified mail, on October 11, 1997,
informing him about the federal EEO process, entitled, �What You Need
to Know About EEO.�
The Commission finds that complainant reasonably suspected discrimination,
at the latest, by September 27, 2001, which was more than forty-five
(45) days before his initial contact with an EEO Counselor. Although on
appeal, complainant appears to state that he was unclear about the time
frame in which to file a complaint, a review of the file indicates
that he was asserting lack of actual and/or constructive knowledge
regarding the limitation period in which to contact an EEO Counselor.
The certified receipt contained in the record indicates that complainant
did receive information from the agency on the time frame in which he
was to contact an EEO Counselor regarding a complaint of discrimination.
We determine that complainant had either actual or constructive knowledge
of the applicable limitation period. Complainant has failed to submit
adequate justification, pursuant to 29 C.F.R. � 1614.105(a)(2) for
extending the time limitation for EEO Counselor contact beyond forty-five
(45) calendar days.
Therefore, the agency's final decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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, Director
Office of Federal Operations
October 31, 2002
__________________
Date