01a00104
03-07-2000
Ronald V. Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald V. Harris, )
Complainant, )
)
v. ) Appeal No. 01A00104
) Agency No. 4-C-190-0164-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated September 7, 1999
dismissing complainant's complaint for untimely EEO Counselor contact is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37656 (to be codified as and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)).<1>
In the complaint complainant alleged that he was discriminated against by
various actions that occurred from 1991 or 1992 through an unspecified
date in 1996. These actions included discipline. The agency found,
and the EEO Counselor Inquiry's Report shows, that complainant initially
contacted an EEO Counselor on May 28, 1998, which was beyond the 45 day
time limit for contacting an EEO Counselor set forth in � 1614.105(a)(1).
On appeal, complainant indicates that the agency's framing of
the complaint included the wrong date for the most recent incident.
Complainant argues that in May 1998 another employee was given Tuesday as
her �drop� day although complainant's request to have Tuesday as a drop
day was denied. Although complainant has not clearly identified when
the agency allegedly denied his request to have Tuesday as a drop day,
he states in his May 28, 1998 request for EEO counseling that his drop
day was denied �more than a year earlier.� Given that complainant claims
that all of these incidents are part of a pattern of discriminatory
harassment that �goes back to 1991,� we find that complainant should
have reasonably suspected discrimination at the time his request to have
Tuesday as a drop day was allegedly denied (which was more than a year
before complainant sought EEO counseling). Therefore, we conclude that
none of the cited incidents in the complaint occurred 45 days or less
prior to complainant's initial EEO Counselor contact. The Commission also
concludes that complainant should have reasonably suspected discrimination
concerning all of the incidents in the complaint more than a year before
he initially contacted an EEO Counselor. Because of our disposition
we do not address the agency's other reason for dismissing a portion of
the complaint.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 7, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.