01981819_r
05-18-1999
Vernon E. Morris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vernon E. Morris, )
Appellant, )
)
v. ) Appeal No. 01981819
) Agency No. H-I-0146-94
William J. Henderson, ) Hearing No.310-96-5271X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �621 et seq. The final agency decision was
issued on December 4, 1997. The appeal was postmarked December 23, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that appellant failed to contact an EEO Counselor
in a timely manner.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on May 20, 1994. On August 10, 1994, appellant filed a formal EEO
complaint (Agency No. HI-0146-94) wherein he alleged that he had been
discriminated against on the bases of his physical disability (hearing
loss) and in reprisal for his previous EEO activity when he was informed
on April 18, 1994, that he would not be reconsidered for the position
of Postal Inspector. The agency accepted the complaint for investigation.
Appellant previously filed another formal EEO complaint (Agency
No. 63-0041-91) on March 1, 1991. In that complaint, appellant alleged
that he had been discriminated against on the basis of his physical
disability when he was denied the opportunity to become a Postal Inspector
based on his pre-employment physical examination on September 18, 1990.
Appellant withdrew that complaint on April 7, 1992. Appellant stated
that: �I am withdrawing my complaint because I believe the issue has been
mutually resolved. Postal Inspector [ ] letter dated March 31, 1992,
fully addressed the problem. Also, it indicated the resolutions taken
that concluded this matter.� Appellant withdrew his complaint based on
the agency's determination that he could hear at a satisfactory level
and its assurance that his application for a postal inspector position
would be reinstated for processing.
At the time that appellant withdrew his complaint, he was informed
that a background investigation would be completed within thirty days.
Nonetheless, the investigation was not conducted until January 1993.
In March 1993, appellant was not selected as a result of certain issues
raised in the background investigation. The agency agreed in June 1993,
to reconsider his application. The reconsideration occurred in January
1994, and appellant's application was approved and forwarded for an
in-person assessment. The assessment took place on April 14, 1994.
Appellant's overall performance was evaluated as less than acceptable.
The letter informing appellant of the assessment results stated that an
applicant is normally reconsidered after one year but that he would not
be, because he would reach age 37, the maximum age for appointment as
a postal inspector, before that time.<1>
In his affidavit with regard to the instant complaint, appellant stated
that the delay in processing his application limited his eligibility
time considerably. Upon completion of the investigation, appellant
requested a hearing before an EEOC Administrative Judge. On May 23,
1997, the Administrative Judge (AJ) issued a Notice of Proposed Decision
Without a Hearing. The agency and appellant submitted timely responses
on June 11, 1997, and June 17, 1997, respectively. The AJ determined
that appellant failed to proffer evidence to show that there are issues
of material fact or credibility necessitating a hearing. Therefore,
the AJ issued summary judgment in favor of the agency. The AJ noted in
her recommended decision that in his response to the Notice of Proposed
Decision Without a Hearing, appellant stated that different matters are
at issue than in his previous complaints because there was no statement
in the investigative record from a management official addressing the
delays in processing his application or the agency's breach of contract.
The AJ stated that the true gravamen of appellant's complaint is that the
agency's decision to screen him out in 1990 based on his hearing loss
has now resulted in his reaching the age limit for appointment without
further opportunity for reconsideration. The AJ ruled that the instant
complaint is untimely because appellant is challenging the continuing
effects of an action which may have been discriminatory. Furthermore,
the AJ noted that appellant does not characterize his complaint as
a continuing violation. The AJ also noted that there is no evidence
to support a claim of a continuing violation in light of the relevant
incidents being discrete events, and not a series of related actions.
In its final decision, the agency adopted the AJ's recommended decision.
On appeal, appellant argues that the instant complaint is not untimely as
it does not raise identical matters as the complaint he filed in 1990.
Appellant states that the accepted issue in the instant complaint is
that he was denied a second assessment on April 18, 1994. Appellant
argues that the agency delayed the processing of his application for
approximately four years. Appellant maintains that the Inspection Service
was aware that these delays would preclude him from another assessment
due to his age.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an alleged discriminatory event, the effective date of an alleged
discriminatory personnel action, or the date that the aggrieved person
knew or reasonably should have known of the discriminatory event or
personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual 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.
Upon review of the record, we find that the AJ properly framed the true
matter at issue. The AJ stated that the crux of the complaint is that
the agency screened appellant out based on his hearing loss in 1990,
and that as a result, appellant has now reached the age limit for
appointment without further opportunity for reconsideration. The AJ
correctly concluded that appellant is challenging the continuing effects
of a past alleged discriminatory action. The AJ noted that appellant
filed a formal complaint when he was screened out of the selection
process in 1990, and appellant subsequently withdrew that complaint.
Appellant contacted an EEO Counselor with regard to the instant complaint
on May 20, 1994. Appellant does not allege that the decision to deny
him a second assessment was based on a discriminatory motive, but rather,
appellant alleges that the agency purposely delayed properly considering
his application for Postal Inspector so that he would reach an age
when a second assessment would no longer be possible. We agree with
the AJ that appellant is attempting to challenge the agency's delay in
considering his application, which challenge is untimely. Accordingly,
the agency's decision to dismiss appellant's complaint on the grounds
of untimely EEO contact was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The age limit for appointment to a federal law enforcement position is
a lawful exception to the Age Discrimination in Employment Act (ADEA)
under 5 U.S.C. �3307.