01990791
12-23-1999
William McLain, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William McLain, )
Complainant, )
)
v. ) Appeal No. 01990791
) Agency No. BGANFO980410290
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 5, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 13, 1998, pertaining to 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 the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. <1> In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of race, color, religion, age, and reprisal when on January
30, 1998, he was issued a memorandum of record for mishandling two job
orders which purportedly led to him being detailed to another office
on February 6, 1998.
The agency dismissed complainant's complaint pursuant to Volume
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614. 107(a)(5)), on the grounds of mootness. The agency also dismissed
complainant's complaint on alternative grounds for untimely contact
with an EEO Counselor, pursuant to Volume 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified as 29 C.F.R. �1614.107(a)(2)). The agency found
that complainant's EEO contact on March 26, 1998 was beyond the applicable
time period for seeking counseling.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action.
EEOC Regulations further provide that the agency or the Commission shall
extend the time limits when the individual shows that he was not notified
of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant failed to seek counseling concerning his allegations of
discrimination within 45 days of the incidents described in his complaint.
Moreover, complainant does not contend that he was unaware of the time
limits for seeking counseling, nor does he suggest that he was prevented
for any reason from seeking counseling in a timely manner. He offers
no persuasive evidence to justify an extension of the applicable time
for counselor contact. In that regard, the agency's decision dismissing
complainant's complaint for untimely counselor contact is AFFIRMED for
the reasons set forth herein.
Since we are affirming the agency's dismissal of complainant's complaint
on the grounds of untimely counselor contact, we will not address the
agency's alternative grounds for dismissal.
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:
Dec. 23, 1999
__________________________________
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 Equal Employment Assistant1 On 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.