Vernon E. Morris, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 18, 1999
01981819_r (E.E.O.C. May. 18, 1999)

01981819_r

05-18-1999

Vernon E. Morris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Vernon E. Morris, )

Appellant, )

)

v. ) Appeal No. 01981819

) Agency No. H-I-0146-94

William J. Henderson, ) Hearing No.310-96-5271X

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. �621 et seq. The final agency decision was

issued on December 4, 1997. The appeal was postmarked December 23, 1997.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that appellant failed to contact an EEO Counselor

in a timely manner.

BACKGROUND

The record reveals that appellant initiated contact with an EEO Counselor

on May 20, 1994. On August 10, 1994, appellant filed a formal EEO

complaint (Agency No. HI-0146-94) wherein he alleged that he had been

discriminated against on the bases of his physical disability (hearing

loss) and in reprisal for his previous EEO activity when he was informed

on April 18, 1994, that he would not be reconsidered for the position

of Postal Inspector. The agency accepted the complaint for investigation.

Appellant previously filed another formal EEO complaint (Agency

No. 63-0041-91) on March 1, 1991. In that complaint, appellant alleged

that he had been discriminated against on the basis of his physical

disability when he was denied the opportunity to become a Postal Inspector

based on his pre-employment physical examination on September 18, 1990.

Appellant withdrew that complaint on April 7, 1992. Appellant stated

that: �I am withdrawing my complaint because I believe the issue has been

mutually resolved. Postal Inspector [ ] letter dated March 31, 1992,

fully addressed the problem. Also, it indicated the resolutions taken

that concluded this matter.� Appellant withdrew his complaint based on

the agency's determination that he could hear at a satisfactory level

and its assurance that his application for a postal inspector position

would be reinstated for processing.

At the time that appellant withdrew his complaint, he was informed

that a background investigation would be completed within thirty days.

Nonetheless, the investigation was not conducted until January 1993.

In March 1993, appellant was not selected as a result of certain issues

raised in the background investigation. The agency agreed in June 1993,

to reconsider his application. The reconsideration occurred in January

1994, and appellant's application was approved and forwarded for an

in-person assessment. The assessment took place on April 14, 1994.

Appellant's overall performance was evaluated as less than acceptable.

The letter informing appellant of the assessment results stated that an

applicant is normally reconsidered after one year but that he would not

be, because he would reach age 37, the maximum age for appointment as

a postal inspector, before that time.<1>

In his affidavit with regard to the instant complaint, appellant stated

that the delay in processing his application limited his eligibility

time considerably. Upon completion of the investigation, appellant

requested a hearing before an EEOC Administrative Judge. On May 23,

1997, the Administrative Judge (AJ) issued a Notice of Proposed Decision

Without a Hearing. The agency and appellant submitted timely responses

on June 11, 1997, and June 17, 1997, respectively. The AJ determined

that appellant failed to proffer evidence to show that there are issues

of material fact or credibility necessitating a hearing. Therefore,

the AJ issued summary judgment in favor of the agency. The AJ noted in

her recommended decision that in his response to the Notice of Proposed

Decision Without a Hearing, appellant stated that different matters are

at issue than in his previous complaints because there was no statement

in the investigative record from a management official addressing the

delays in processing his application or the agency's breach of contract.

The AJ stated that the true gravamen of appellant's complaint is that the

agency's decision to screen him out in 1990 based on his hearing loss

has now resulted in his reaching the age limit for appointment without

further opportunity for reconsideration. The AJ ruled that the instant

complaint is untimely because appellant is challenging the continuing

effects of an action which may have been discriminatory. Furthermore,

the AJ noted that appellant does not characterize his complaint as

a continuing violation. The AJ also noted that there is no evidence

to support a claim of a continuing violation in light of the relevant

incidents being discrete events, and not a series of related actions.

In its final decision, the agency adopted the AJ's recommended decision.

On appeal, appellant argues that the instant complaint is not untimely as

it does not raise identical matters as the complaint he filed in 1990.

Appellant states that the accepted issue in the instant complaint is

that he was denied a second assessment on April 18, 1994. Appellant

argues that the agency delayed the processing of his application for

approximately four years. Appellant maintains that the Inspection Service

was aware that these delays would preclude him from another assessment

due to his age.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints

of discrimination should have been brought to the attention of the

Equal Employment Opportunity Counselor within thirty (30) calendar days

of an alleged discriminatory event, the effective date of an alleged

discriminatory personnel action, or the date that the aggrieved person

knew or reasonably should have known of the discriminatory event or

personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended

the time limit for contacting an EEO Counselor to forty-five (45) days

for actions occurring on or after October 1, 1992, the effective date

of the new regulations.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual 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.

Upon review of the record, we find that the AJ properly framed the true

matter at issue. The AJ stated that the crux of the complaint is that

the agency screened appellant out based on his hearing loss in 1990,

and that as a result, appellant has now reached the age limit for

appointment without further opportunity for reconsideration. The AJ

correctly concluded that appellant is challenging the continuing effects

of a past alleged discriminatory action. The AJ noted that appellant

filed a formal complaint when he was screened out of the selection

process in 1990, and appellant subsequently withdrew that complaint.

Appellant contacted an EEO Counselor with regard to the instant complaint

on May 20, 1994. Appellant does not allege that the decision to deny

him a second assessment was based on a discriminatory motive, but rather,

appellant alleges that the agency purposely delayed properly considering

his application for Postal Inspector so that he would reach an age

when a second assessment would no longer be possible. We agree with

the AJ that appellant is attempting to challenge the agency's delay in

considering his application, which challenge is untimely. Accordingly,

the agency's decision to dismiss appellant's complaint on the grounds

of untimely EEO contact was proper and is AFFIRMED.

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:

May 18, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The age limit for appointment to a federal law enforcement position is

a lawful exception to the Age Discrimination in Employment Act (ADEA)

under 5 U.S.C. �3307.