Ronaldv.Harris, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 7, 2000
01a00104 (E.E.O.C. Mar. 7, 2000)

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.