01980934
10-15-1998
Don W. Gorman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Don W. Gorman, )
Appellant, )
)
v. ) Appeal No. 01980934
) Agency No. 4K-210-0124-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 10, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 17, 1997, pertaining
to his complaint of unlawful employment discrimination in violation
of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In his complaint, appellant alleged that he was subjected to
discrimination on the basis of physical disability (chronic tenosynovitis
in both knees) when since April 26, 1997:
Management has not abided by an agreement for appellant to change craft
to a modified part-time flexible ("PTF") clerk, PS-5 position;
Appellant's salary check has been incorrect; and
Appellant's PS Form 50 (Notification of Personnel Action) has been
incorrect.
The agency dismissed all three allegations in appellant's complaint
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for failure to
initiate contact with an EEO Counselor in a timely manner. Specifically,
the agency determined that appellant's July 11, 1997 initial EEO Counselor
contact occurred more than forty-five (45) days from the dates of the
incidents of alleged discrimination and was, therefore, untimely.
The record indicates that on April 22, 1997, appellant accepted a modified
job offer for a Nixie Clerk CFS (Modified) position, effective April
26, 1997. At the time he accepted the offer, appellant was a Full-Time
City Carrier, PS-05. Appellant alleged that subsequent to accepting the
job offer, he was erroneously changed to a Modified PTF CFS Clerk, PS-04
position, rather than a modified PTF Distribution Clerk, PS-05 position.
Appellant alleged that his salary check has been in error since April
26, 1997; he contacted Personnel and the Injury Compensation Office
to correct the error; however, appellant alleged that despite several
attempts and assurances that the error was being corrected, on July 10,
1997, he received his salary check which indicated that he was a Full-Time
Letter Carrier, Level Q-05.
According to the agency's Senior Personnel Services Specialist, appellant
was properly placed in a Modified Nixie Clerk (CFS) position, which is
a level PS-04 position. Since appellant was at the level 05/K salary,
appellant was placed at the 04/N salary level in accordance with the
ELM 546.142(4), which provides that an individual who is reemployed to
a position in a different salary schedule is reemployed at the grade
appropriate for the position to which reemployed and is placed in any
higher step in the new grade that is less than one full step above the
current salary for the grade/step that the individual would have acquired
had there been no injury or disability.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
In the instant case, appellant indicated that he was aware of the
errors at issue since April 26, 1997, and that he has attempted to have
corrections made through Personnel and the Injury Compensation Office,
however, to no avail. The Commission has held that the use of the
grievance process or other internal appeal process does not toll the time
limit for contacting an EEO Counselor. See Speed v. USPS, EEOC Request
No. 05921093 (June 24, 1993). We find that appellant's EEO contact on
July 11, 1997, was more than forty-five days after he was aware of the
matters at issue and appellant failed to present adequate justification
to warrant an extension of the applicable time limit. Accordingly, we
hereby AFFIRM the agency's dismissal of appellant's complaint as untimely.
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:
Oct. 15, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations