01A24045_r
10-31-2002
Tommy A. Romo, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tommy A. Romo, Jr. v. United States Postal Service
01A24045
October 31, 2002
.
Tommy A. Romo, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24045
Agency Nos. 1G-781-0006-02 and 4G-780-0019-02
DECISION
The instant matters are appeals from two different agency decisions
concerning two different complaints. Upon review, the Commission
finds that the agency properly dismissed complainant's complaints for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaints dated January 30, 2002, and December 31, 2001,
complainant claimed that he was discriminated against on the bases of
race (unspecified), age (D.O.B. November 4, 1946), and disability (no
veterans' preference). The Commission is consolidating complainant's
appeals, pursuant to 29 C.F.R. � 1614.606.
Agency No. 1G-781-0006-02
The Commission finds that complainant's complaint, Agency
No. 1G-781-0006-02, was properly dismissed for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). In his complaint
complainant claimed that he was discriminated against when:
On December 28, 2000, complainant was not selected for the position of
Account Representative in Austin, Texas;
On February 9, 2001, complainant was not selected for the positions of
Account Representative in Houston and Corpus Christi, Texas;
On April 20, 2001, complainant was not selected for the position of
Account Representative in San Antonio, Texas.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the most recent alleged discriminatory event
occurred on April 20, 2001, but complainant did not initiate contact with
an EEO Counselor until October 11, 2001, which is beyond the forty-five
(45) day limitation period. Complainant should have reasonably suspected
discrimination, at the latest, by April 20, 2001, when he was informed
that he was not the successful applicant and that he could not be
considered for the position. On appeal, complainant asserts, �I had my
reasons for delaying my grievances to EEO personnel. I was constantly
submitting applications for advancement, therefore I did not want to
retaliation [sic] from management in the Rio Grande District and they
found out I had submitted grievances.� We find complainant's explanation
for his delay in initiating EEO Counselor contact to be insufficient
to warrant an extension of the forty-five (45) day limitation period.
Therefore, we find that the agency properly dismissed complainant's
complaint, Agency No. 1G-781-0006-02, for untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2).
Agency No. 4G-780-0019-02
We also find that the agency properly dismissed complainant's complaint,
Agency No. 4G-780-0019-02, for untimely EEO Counselor contact, pursuant
to 29 C.F.R. � 1614.107(a)(2). In this complaint, complainant claimed
that he was discriminated against when, on February 6, 2001, he was not
selected for the position of Small Business Specialist, EAS-16, in San
Antonio, Texas.
The record shows that complainant was notified of his non-selection for
the position of Small Business Specialist, EAS-16, on February 6, 2001,
but complainant did not initiate contact with an EEO Counselor until
September 22, 2001, which is beyond the forty-five (45) day limitation
period.<1> Complainant should have reasonably suspected discrimination
by February 6, 2001. We
find complainant's explanation on appeal for his delay, as described
above, to be equally unpersuasive in Agency No. 4G-780-0019-02, as in
Agency No. 1G-781-0006-02. Accordingly, we find that the agency properly
dismissed complainant's complaint, Agency No. 4G-780-0019-02, for untimely
EEO Counselor contact, pursuant to 29 C.F.R. � 1614. 107(a)(2).
The agency's decisions to dismiss complainant's complaints, Agency
No. 1G-781-0006-02, and Agency No. 4G-780-0019-02, are 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
October 31, 2002
__________________
Date 1Complainant initiated EEO Counselor contact
in Agency No. 4G-780-0019-02 on September 22, 2001, and initiated EEO
Counselor contact in Agency No. 1G-781-0006-02 on October 11, 2001.
Even if we considered September 22, 2001 to be the date of initial
counselor contact for both complaints, complainant's initial contact
with the EEO Counselor would still be untimely.