01A45090
11-08-2004
Mark G. Knox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark G. Knox v. United States Postal Service
01A45090
11-08-04
.
Mark G. Knox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45090
Agency No. 1E-801-0035-04
DECISION
BACKGROUND
In his January 20, 2004 equal employment opportunity (EEO) counselor
contact and subsequent complaint, complainant alleged that he was
subjected to discrimination on the bases of disability, age (D.O.B. April
8, 1951), and reprisal for previously engaging in EEO activity when:
On December 20, 2002, complainant received notice from the agency that
the agency found him not medically suitable for the position of Labor
Custodian at the Denver Processing and Distribution Center;
On March 21, 2003, the Office of Personnel Management (OPM) affirmed
that he was not qualified for the position of Labor Custodian;
On July 31, 2003, complainant received notice from the agency that the
agency found him not medically suitable for the position of City Letter
Carrier at the Aurora, CO Post Office; and
On January 13, 2004, OPM affirmed the agency's tentative determination
that complainant was not qualified for the position of City Letter
Carrier because of a medical or physical condition.
The agency dismissed claims 1, 2 and 3 pursuant to 29 C.F.R. �
1614.105(a)(2) because complainant failed to raise them within 45
days of the alleged discriminatory event. The agency went on to
address claim 2 again along with claim 4, dismissing both pursuant
to 29 C.F.R. 1614.107(a)(1) as a collateral attack on the decision of
another forum.
ANALYSIS
Timeliness.
Pursuant to 29 C.F.R. � 1614.105(a)(1), an aggrieved individual must
raise matters he believes are discriminatory within 45-days of the
alleged discriminatory event. An agency must extend the time limits
where a complainant can show that 1) he was not notified of the time
limits and was not otherwise aware of them, 2) he did not know and
reasonably should not have known that the discriminatory event occurred;
3) despite due diligence he was prevented by circumstances beyond his
control from contacting an EEO counselor within 45 days, or 4) for other
reasons considered sufficient. 29 C.F.R. � 1614.105(a)(2).
Complainant addressed the timeliness issue in his formal complaint,
explaining that he first contacted the agency's EEO office on August 20,
2001, but was told that the agency �couldn't work with reinstatement
requests.� In his appeal, complainant asserted that �[i]n all my
correspondence with the [agency] no one ever bothered to tell me when
an EEO complaint could be filed. I was never made aware of the proper
time when the 45 days started. My counselor. . . told me verbally that
this could be a problem . . . .�
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination on timeliness.
Newman v. Presidio Trust, EEOC Appeal No. 01A24736 (Mar. 18, 2003).
In the instant complaint, the agency met this burden by providing, on
appeal, certifications from agency personnel that on August 5, 2002 and
June 24, 2003, notices were posted at the agency informing individuals
of the 45-day filing requirement. While it appears that complainant
may not have been employed by the agency at the time of the alleged
discriminatory events, his contact with agency personnel on August 20,
2001 (which pre-dated the events at issue) shows that he was aware of
the appropriate office to contact regarding his EEO rights. Although
complainant asserted that no EEO official advised him of timeliness
requirements, he failed to show that the agency had any duty to notify
him of timeliness requirements when he made his contact on August 20,
2001,<1> nor did he identify other contacts before his January 20, 2004
EEO counselor contact. In that contact complainant acknowledged that he
discussed with the EEO counselor timeliness and the 45-day contact period.
Complainant presented no persuasive argument that he met any of the
exceptions for adhering to timely filing requirements. Accordingly,
we find that claims 1, 2, and 3 were properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Collateral Attack.
By his claim in the EEO process against the decision of OPM that
complainant was not medically qualified for the positions, complainant is
asserting a claim in one forum against the decision made by another forum.
Such collateral attacks are not permitted. Lockley v. Department of
the Treasury, EEOC Appeal No. 01973971 (Aug. 31, 2000).
CONCLUSION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(2) and .107(a)(1).
Accordingly, 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
____11-08-04______________
Date
1 Complainant failed to explain why he
contacted the agency in 2001, nor did he show the nexus between that
contact and the instant complaints which arose in 2002, 2003 and 2004.