05980473
06-24-1999
Clarence P. Kader, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clarence P. Kader, Jr. v. United States Postal Service
05980473
June 24, 1999
Clarence P. Kader, Jr., )
Appellant, )
) Request No. 05980473
v. ) Appeal No. 01974448
) Agency No. 4B-140-0038-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On March 17, 1998, the United States Postal Service (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Clarence P. Kader, Jr. v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal No. 01974448 (March 6, 1998).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the agency's request is granted.
The issue presented is whether the previous decision properly reversed
the dismissal of three issues in appellant's complaint.
Appellant contacted an EEO counselor on January 16 and filed his formal
complaint on March 20, 1997, alleging discrimination based on age (age 55)
and reprisal. The agency issued a final agency decision (FAD) on April
11, 1997, dismissing three issues for untimely EEO contact.<1> Appellant
filed an appeal, and the previous decision reversed the agency's action.
The agency has filed the instant request, arguing that the previous
decision was incorrect as a matter of law.
The allegations at issue concern events that occurred between August
1995 and November 6, 1996. Appellant alleged that:
(a) in August 1995, he was not selected for the position of Postmaster
in Kill Buck, New York;
(b) from October 1995 through November 1996, while on detail, he was
required to periodically cover his carrier route and denied overtime on
Saturdays; and
(c) on November 6, 1996, his detail as Officer-in-Charge at Versailles,
New York, ended.
On appeal, appellant contended that EEO posters were not available at
either the Lily Dale or Versailles facilities and that he was unaware of
the time limitations. The previous decision reversed the agency's FAD
and held that "prior EEO activity alone is insufficient" to establish
appellant's knowledge of the time requirements.<2>
In its request, the agency argues that the previous decision failed to
follow Commission precedent that presumed an appellant to be familiar with
EEO filing requirements based on his prior EEO activity. In support, the
agency cites Coffey v. Department of the Navy, EEOC Request No. 05901006
(November 16, 1990). In response, appellant contends that his EEO
activity in early 1994 was limited and not sufficient to inform him of
EEO procedures and filing requirements.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of
the parties, we find that agency's request meets the criteria of 29
C.F.R. �1614.407(c). Upon reconsideration, we find that the agency
properly dismissed the three allegations at issue for untimely EEO
contact.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to
be discriminatory. Appellant did not contact an EEO counselor until
more than 45 days after the events in the allegations at issue herein.
Appellant has not asserted that he was unaware of the discriminatory
nature of the acts complained of, and, as a previous participant in the
EEO process, he was presumed to be cognizant of the time limitations
for contacting an EEO counselor. See Coffey v. Department of the Navy,
supra.
Appellant argues that his prior EEO experience was limited and that no
poster was available at two of his assigned duty stations. Nevertheless,
the Commission has consistently held that an appellant who has engaged
in prior EEO activity is deemed aware of the time frames required for
filing complaints in the EEO procedure. Coffey, supra; Patrick v. USPS,
EEOC Request No. 05940633 (November 10, 1994).<3> For the above reasons,
we find that the agency properly dismissed the three allegations before
us for untimely contact with an EEO counselor.
CONCLUSION
After a review of the agency's request for reconsideration, the
appellant's reply thereto, the previous decision, and the entire record,
the Commission finds that the agency's request meets the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission to
grant the agency's request. The decision in EEOC Appeal No. 01974448
(March 6, 1998) is REVERSED, and the agency's decision is AFFIRMED.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
June 24, 1999
Date Frances M. Hart
Executive Officer
1The agency accepted issues regarding a non-selection, requests for leave,
and comments by his supervisor regarding his position and retirement.
2Appellant began working at the agency as a carrier in Springville,
New York. In January 1994, appellant contacted an EEO counselor and,
following counseling, was issued a Notice of Final Interview on February
24, 1994; appellant did not file a formal complaint.
3We note, in addition, that appellant had management experience and
supervisory training, having served as Officer-in-Charge (OIC) at two
local post offices and taken numerous management and supervisory training
courses.