01A20592_r
06-10-2003
Carl R. Logan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carl R. Logan v. United States Postal Service
01A20592
June 10, 2003
.
Carl R. Logan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20592
Agency No. 1-D-401-0046-01<1>
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. In his complaint,
complainant alleged discrimination on the basis of disability when he
was issued a Notice of Removal, effective March 31, 2001.
The agency found that complainant first contacted an EEO Counselor on July
11, 2001, more than forty-five (45) days after the alleged discriminatory
incident. On appeal, complainant, through his attorney, argues that he
was not aware that discrimination on the basis of disability was illegal.
He also denies knowledge of the time limitation period, and contends no
information was posted on his facility bulletin boards concerning EEO
contact. Complainant includes a picture of a bulletin board that contains
no visible EEO information. Even if the information was available on a
bulletin board, complainant contends that he did not have an opportunity
to view the information because he was barred from the facility between
January 2001 and his removal.
In response, the agency argues that complainant had notice of the time
limits through postings of facility bulletin boards. The agency provides
photographs of two separate bulletin boards that include EEO Poster 72.
One of these bulletin boards was located next to the one complainant
photographed. The agency includes an affidavit indicating that the
information has been posted since at least 1990, and that complainant
had an opportunity to read the information within the last twenty-one
years of his employment.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). The time limit may be extended where, inter
alia, complainant was not notified of the time limits or was not otherwise
aware of them, or he did not know and reasonably should not have known
that the discriminatory matter occurred. 29 C.F.R. � 1614.105(a)(2).
Complainant was aware of the agency's action and suspected its potential
illegality � he filed a grievance regarding this matter in April 2001.
We note, however that the use of the negotiated grievance procedure does
not toll the time limit for contacting an EEO Counselor. Schermerhorn
v. United States Postal Service, EEOC Request No. 05940729 (Feb. 10,
1995). Further, the Commission notes that agency EEO Poster 72 notifies
employees of the 45-day time limit, and instructs them to contact the EEO
Office in order to begin the complaint process. See Hurt v. United States
Postal Service, EEOC Appeal No. 01A12926 (July 24, 2002). The Commission
finds that EEO Poster 72 gave complainant constructive notice of the
applicable time limit. See Santiago v. United States Postal Service,
EEOC Request No. 05950272 (July 6, 1995). The Commission further finds
that the poster was available to complainant for several years, and his
failure to review it prior to being barred from the workplace does not
justify an extension of the time limit. Therefore, complainant failed
to timely contact an EEO Counselor.
CONCLUSION
Accordingly, the agency's dismissal 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
June 10, 2003
__________________
Date
1In its final decision, the agency refers
to complainant's claim with Agency No. 1-D-401-0046-01. Elsewhere, the
agency identifies complainant's claim with Agency No. 4-C-400-0088-01.
This discrepancy is not explained in the record, but has no bearing on
the Commission's ruling.