01974318
01-22-1999
Dennis G. McNab, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis G. McNab v. United States Postal Service
01974318
January 22, 1999
Dennis G. McNab, )
Appellant, )
)
v. ) Appeal No. 01974318
) Agency No. 1E-895-0006-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated April 24, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
According to the final agency decision, the appellant alleged in
his January 25, 1997 complaint that the agency discriminated against
him based on his physical disability and age and in retaliation for
his prior EEO activity, when (1) on December 23, 1994, the appellant
received a letter from Postal Inspectors which contained an allegedly
false statement; and (2) on September 14, 1996, Postal headquarters
staff refused to conduct an investigation of an incident that occurred
on January 6, 1994. The decision dismissed the appellant's complaint on
the ground that he did not seek EEO counseling until December 5, 1996,
more than 45 calendar days after the alleged discriminatory acts.
After a review of the entire record, including all appeal submissions,
the Commission finds that the appellant did not timely seek counseling
regarding the alleged discrimination described above. The Commission
also finds that the appellant has not provided any explanation that
would justify extending the time limitation for seeking counseling.
The Commission further finds that neither of the appellant's
allegations state a claim of employment discrimination but instead
involve the appellant's disagreements with the Postal Inspectors.
These disagreements, in turn, concern matters related to the appellant's
worker's compensation claim, a matter that must be decided by the
Department of Labor's Office of Workers' Compensation Program, not the
Commission.
In making these findings, the Commission notes the appellant's complaint
references 50 alleged violations of the ELM book and 40 alleged illegal
violations of the United States Code. However, the appellant did not
include these allegations in his request for counseling. There also
is no evidence in the record that he discussed these allegations, or
allegations like or related to these allegations, with the EEO counselor
as required by EEOC Regulation 29 C.F.R. �1614.105(b).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's January 25, 1997 complaint.
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:
January 22, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations