05980742
10-23-1998
John F. Zimmerman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John F. Zimmerman v. United States Postal Service
05980742
October 23, 1998
John F. Zimmerman, )
Appellant, )
) Request No. 05980742
v. ) Appeal No. 01975269
) Agency No. 4-C-430-0041-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 27, 1998, John F. Zimmerman (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Zimmerman v. USPS, EEOC Appeal No. 01975269 (March
27, 1998). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
The record indicates that appellant contacted an EEO counselor on January
30, 1997, complaining of discrimination based on disability (alcoholism),
age, and reprisal (prior EEO complaints) when he was denied time off in
May 1996 and when he received a letter on November 25, 1996 denying his
request for reinstatement.
Complainants must contact an EEO counselor within 45 days of the matter
alleged to be discriminatory. 29 C.F.R. �1614.105(a)(1). In the instant
case, appellant contacted the EEO counselor more than 45 days after
he received the letter denying his request for reinstatement. The time
limits for contacting the EEO counselor may be extended pursuant to 29
C.F.R. �1614.105(a)(2), where a complainant is not aware of the time
limit or despite due diligence, he was prevented from contacting the EEO
counselor in a timely manner. The agency dismissed the complaint for
failure to contact the EEO counselor in a timely manner, noting that
appellant did not offer evidence to persuade the agency to extend the
time limits. The previous decision affirmed without substantive comment.
In his request for reconsideration, appellant does not address the
issue of his untimely EEO counselor contact. Rather, he submits numerous
documents relating to the merits of his complaint. Appellant has failed
to submit justification for extending the time limits for contacting
the EEO counselor. 29 C.F.R. �1614.604(c).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's request
does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01975269 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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. 23, 1998
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat