01A13839_r
12-03-2001
Victor E. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victor E. Moore v. United States Postal Service
01A13839
December 3, 2001
.
Victor E. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13839
Agency No. 1-G-753-0134-00
DECISION
The instant matter is an appeal from an agency decision concerning
two different complaints consolidated by the agency pursuant to 29
C.F.R. � 1614.606. The Commission finds that complainant's complaints
were properly dismissed for untimely EEO Counselor contact, pursuant to
29 C.F.R. � 1614.107(a)(2).
In his complaints, dated August 2, 2000 and August 29, 2000, complainant
claimed that he was discriminated against on the bases of race
(African-American), color (black), sex (male), age (D.O.B. November 18,
1947), and disability (depression, anxiety, and back) when:
On July 12, 2000, complainant was issued a notice of proposed removal;
and
From October 13, 1998 to August 12, 2000, complainant was denied Family
Medical Leave Act (FMLA) leave, he was issued a notice of proposed
removal and he subsequently received a final notice of removal action.
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).
Although complainant claims that the claimed discriminatory events
occurred between October 13, 1998 and August 12, 2000, the agency
maintains that complainant's removal from his position with the agency
became effective on March 18, 2000. The agency's assertion is supported
by the Merit Systems Protection Board (MSPB) decision dated January
9, 2001. Additionally, complainant presents no arguments on appeal
to contradict the agency's position that complainant's removal became
effective on March 18, 2000.
Complainant's initial contact with an EEO Counselor occurred, at the
earliest, on June 29, 2000, which is beyond the forty-five (45) day
limitation period. The Commission finds that complainant should have
reasonably suspected discrimination on March 18, 2000, the effective
date of his removal, which was more than 45 days before his initial
contact with an EEO Counselor. 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
December 3, 2001
__________________
Date