01991253_r
07-26-2001
Dermot A. Kinnane, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dermot A. Kinnane v. United States Postal Office
01991253
July 26, 2001
.
Dermot A. Kinnane,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991253
Agency No. 4-K-220-0113-98
DECISION
Complainant timely filed an appeal with this Commission from an agency's
final decision dated November 5, 1998. In his complaint, complainant
alleged that the agency engaged in unlawful discrimination against
him when:
Since a January 15, 1998 grievance settlement, a portion of complainant's
withheld pay has remained unpaid and three of complainant's pay checks
have been deficient, leading to him being underpaid;
From February 9, 1998, the agency has held up complainant's OWCP claim
attempts, thus preventing his legitimate claims for Leave Buyback and
Leave Without Pay (LWOP) compensation from OWCP, causing complainant
to exhaust sick leave and go into a �no-pay� status;
Since April 7, 1998, a portion of complainant's withheld pay has remained
unpaid and three of complainant's pay checks have been wrong, resulting
in a deficiency in complainant's pay; and
From April 7, 1998, the agency has held up complainant's OWCP claim
attempts, thus preventing his legitimate claims for Leave Buyback and
Leave Without Pay compensation from OWCP, causing complainant to exhaust
sick leave and go into a �no-pay� status.
In its initial decision dated November 5, 1998 that is the subject
matter of this appeal, the agency dismissed claims 1 and 2 on the
grounds of untimely EEO Counselor contact and accepted claims 3 and
4 for investigation. In another final decision, dated July 2, 1999,
the agency found no discrimination regarding claims 3 and 4.
As a threshold matter, the Commission notes that EEOC Regulation 29
C.F.R. � 1614.107(b) provides that where an agency decides that some
but not all of the claims in a complaint should be dismissed, this
determination is not appealable until final action is taken on the
remainder of the complaint. Here, the record indicates that the agency
issued a final decision for claims 3 and 4 on July 2, 1999 after accepting
these claims for review in the initial November 5, 1998 decision. However,
the record contains no evidence indicating that complainant filed an
appeal from the agency's July 2, 1999 final decision regarding claims
3 and 4. Consequently, this decision will only review the final agency
decision dismissing claims 1 and 2.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity 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 Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity 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. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
However, EEOC Regulations provide that the agency or the Commission
shall extend the time limits when the individual shows that she was
not notified of the time limits and was not otherwise aware of them,
that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence she was prevented by circumstances beyond her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the alleged discriminatory
events occurred on January 15, 1998 and February 9, 1998, but that
complainant did not initiate contact with an EEO Counselor until May
22, 1998, which is beyond the forty-five (45) day limitation period.
On appeal, no 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 claims 1 and 2 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
July 26, 2001
__________________
Date