01A10070
03-30-2001
Sean S. Darling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sean S. Darling v. United States Postal Service
01A100700
March 30, 2001
.
Sean S. Darling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10070
Agency No. 4-D-250-0117-99
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The record shows that by letter dated July 4, 1999,
and postmarked July 13, 1999, complainant contacted the EEO office and
asked to file a complaint of discrimination for a matter that occurred
in May 1999.
Complainant subsequently filed a formal complaint claiming that he had
been discriminated against on the basis of religion when on May 14,
1999, and May 21, 1999, the Customer Service Manager made derogatory
religious remarks toward him, possibly explaining why she had been
abusive towards him.
The agency issued a final decision (FAD) dismissing the complaint for
untimely EEO Counselor contact. Complainant appealed the FAD claiming
that he had sent a letter to the agency's EEO office on June 26,
1999, thereby rendering timely his EEO contact relating to the May
1999 incidents. The Commission issued a decision on June 20, 2000,
vacated the FAD and ordered a supplemental investigation to determine
if complainant had contacted the EEO office by mail, on June 26, 1999.
Darling v. USPS, EEOC Appeal No. 01A00924 (June 20, 2000).
On remand, the Acting EEO Counselor/Investigator issued an affidavit
dated August 1, 2000, stating that the sole document received in the
EEO office from complainant was the July 4, 1999 letter noted above.
The EEO Counselor further stated that this letter was postmarked July 13,
1999, and received by the office on July 15, 1999. The EEO Counselor
also stated that the office records showed that complainant had not made
any telephone contact with the EEO office.
On September 14, 2000, the agency issued a new FAD once again dismissing
the complaint for untimely EEO Counselor contact.
A review of the record shows that although the alleged discriminatory
events occurred on May 14, 1999, and May 21, 1999, complainant did
not initiate contact with an EEO Counselor until July 13, 1999, which
is beyond the forty-five (45) day limitation period. On appeal, no
persuasive arguments or evidence have been presented to warrant an
extension of the time limit for initiating EEO contact. Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 30, 2001
__________________
Date