Tommy A. Romo, Jr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 31, 2002
01A24045_r (E.E.O.C. Oct. 31, 2002)

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.