01A10571_r
07-25-2002
Dennis P. Nugent, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis P. Nugent v. United States Postal Service
01A10571
July 25, 2002
.
Dennis P. Nugent,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10571
Agency No. 1B-012-0046-00
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact.
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 20, 2000, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In his complaint, complainant claims that he was subjected to
discrimination on the basis of disability when the agency issued him
a Notice of Removal, effective January 19, 2000, charging complainant
with failing a random drug test taken on January 7, 2000.
In its final decision, the agency dismissed the complaint on the
grounds of untimely EEO Counselor contact. The agency determined that
complainant filed an appeal with the Merits Systems Protection Board
(MSPB) regarding the removal action on March 1, 2000 (MSPB Docket
No. BN-0752-0082-I-1). Citing 29 C.F.R. � 1614.302(a), the agency noted
that complainant amended the MSPB appeal on March 24, 2000 to include
an affirmative defense of discrimination, thereby rendering the MSPB
appeal a mixed case appeal on that date.
The MSPB Administrative Judge dismissed the appeal for lack of
jurisdiction on May 22, 2000. The agency recommenced processing the case
in the EEO forum and thereafter dismissed the instant EEO complaint.
Identifying the date complainant asserted his affirmative defense
of discrimination (March 24 , 2000) as the date that the mixed case
appeal was filed, the agency found it exceeded the 45-day EEO Counselor
contact requirement regarding the January 19, 2000 termination from
agency employment..
Complainant, through his representative, asserts that he made timely
contact with the EEO counselor. Highlighting the same relevant
regulation, complainant maintains that �the date on which the person
filed his or her appeal with [the] MSPB shall be deemed to be the
date of initial contact with the counselor.� 29 C.F.R. � 1614.302(b).
Complainant thus claims that the initial MSPB appeal filing of March
1, 2000, constituted the date of EEO Counselor contact. Moreover,
complainant contends that whether he raised the discrimination claim
at the beginning of his appeal or later in his amendment is irrelevant.
As complainant notes, he �was well within his rights at the MSPB to amend
his complaint and add a claim of discrimination, especially when it was
early on in the proceeding.�
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within
forty-five (45) days of the effective date of the action. The agency
or the Commission shall extend the time limits in accordance with 29
C.F.R. �1614.105(a)(2) when the complainant shows that he was not notified
of the time limits and was not otherwise aware of them, that he did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
At issue in the present case is the actual date of EEO Counselor contact.
The Commission has held that when a complainant files a mixed-case
appeal with the MSPB and it is dismissed on jurisdictional grounds,
the agency is required to promptly notify the complainant, in writing,
of his right to contact an EEO Counselor and to file a complaint subject
to 29 C.F.R. �1614.107. See 29 C.F.R. �1614.302(b). The date on which
complainant filed his appeal with the MSPB shall be deemed to be the
date of initial contact with the EEO Counselor. See Bell v. Department
of Defense, EEOC Request No. 05940741 (January 6, 1995).
The agency contends that complainant did not file a mixed-case appeal
until March 24, 2000, the day that complainant amended the MSPB appeal
to include his allegation of discrimination. We agree with the agency's
determination, finding that it was not until complainant amended his
MSPB appeal on March 24, 2000, that the agency was put on notice that
complainant's MSPB appeal raised the issue of discrimination. Construing
March 24, 2000 as the initial EEO Counselor contact date, the Commission
determines that it is more than forty-five days after the effective date
of complainant's January 19, 2000 discharge. Complainant has failed to
present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2),
for extending the limitation period beyond forty-five days. Accordingly,
the agency's decision to dismiss the instant complaint for failure to
initiate contact with an EEO Counselor in a timely fashion was proper
and 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
July 25, 2002
__________________
Date